Page:United States Reports, Volume 2.djvu/183

 Suratnn-: Count- or Pmsyyhnht -. typ- U786, they fold and conveyed the whoie of the prctnilirs Y}: a - INI. valuable eonlideration, tojahn Drjeli, who therct pon.-rvit5<>VYV tuted an eje&ment again!} the tenants in pclleiion, and tc~·:¤ver· ed. It appeared, however, that before the marriage of Mr. and Mrs. Ducbe, on the goth of Mg, r747, they had enter- ed into marriage articles, (which were recorded irr Augsyi', 1779,) whereby apowet was referred to the latter to difpofe of the pnyinal ettate, during the coverture, but no mention was made of her realeliate; md, accordingly, on the 1 nth of May, 1 76;, the made an appointment in the nature of a Will, difpoling of £Z,I0¤ perfonal eltate, of which a fumof go was given to the plaintil}, Elizaktb Haldane, who received it from Mr. Dub:. But fhe, alfo, undertook by the fame inltrument to devife her rrti cftate to her huiband, and coufiitutcd him ont: of her Execus tors. After herdeath, Mr. Deck, or his reprefentative, continued to dcmifc the teal cftate, and to receive the accruing rents ariling, as well asthe rent-charge, ’till the ad of March, :786, to the aggregate amount of [938 g 3,of which the fum of {743 g g was received by him, and the fum of £tg_;, was received by Arulraa Daz, one of his Executors, fubfequent to the convey- ance to john Dafzla'. In addition to theft: faéts, it appeared, that a letter had been written from Mr. Ducbé, to the plaintiff} Efiaaber.5 Hafrfnrx, on the rath of February, r·;82, Hating, that as his fon had been attainted of treafon, the teal eftate of Hg'- tar Duclve, might be loft, unlefs {he, as heir at law, would con· vey it to him, and otibring {100 for fuch a conveyance ; which offer was augmented to the um cf1[goo by iimilar letters, dated refpeétively the rorh of May, and t ie 24th of judy, 1784. At that period Elizabeth Haldane, refidcdin the State of Ifaryland, and her hulbandwas in fttaitencd circumftances. 'Ihe plain- titfs having, as above ftated, recovered in the ejeétment for the prcmifes, brought this aétion againlt the Executors of Mr. Dude for the mtfne profits ; and the jury, confotmably to the charge of the Court, gave a verdi&, in favor of the plaintif}, for éggti 1 5, the amount of the rents from Mérmry, t·;8 2, 'till c 2d Murrb, I 786. The motion for a new trial (which was argued at the lafl . Term) was fupported by E. Tilglmmn and Lr·wi.r ; and op- pofed by Ingujzll and Swggmnt. ‘ In fupport of the motion, it was contended, that upon the evidence the prefent aéiion cannot be maintained, becaufe the T eiiator was a d%·%r; and no aclion will, in fuch cafe, lie a- gainit Exzcutarr: That it will not lie, becaufe there was no pri- vizy; becaufe the money was received as owner ; and be- caufc the plaintiffs had conveyed away all their right to the cf- tate. The Tciiator received the money from his own tenants, forhis own ufe ; and the cafe is not tainted by any fraud, con- Z CC?3iH¢lQy

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