
    Dorsett et al. v. Lambeth, Executor.
    A testator directed that a certain sum of money should he invested in stock, and the interest paid to a legatee during her life, the amount after her death to revert to his estate. The amount'was not invested, but one of the executors retained it, and paid the interest to the legatee until her death. The residuary legatee bequeated this legacy to plaintiffs, who sued the succession of the residuary legatee for the amount of the legacy: Held, that the legacy not having been paid to the succession of the residuary legatee, it cannot be made liable for the amount; but that plaintiffs’ remedy is' against the party by whom the legacy was retained, and who still holds it.
    APPEAL from the Court of Probates of New Orleans, Bermudez, J.
    
      Upton, for the plaintiffs.
    
      Moise and Randolph, for the appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

This appeal is taken from a judgment rendered in the late court of Probates of New Orleans, against the defendant, as dative executor of Phillip Taylor, by which the estate of Phillip Taylor is charged with the payment of the amount of a legacy of $5000 in favor of the plaintiffs- The only question to be examined is, as to the correctness of this judgment- It is not whether the legacy is due to them, nor who is bound to pay it to them, but whether the succession of the deceased, under the administration of the executor, is liable for it.

The clause in the will of the decased, on which the judgment is based, is in these words: “ I desire that the legacy of $5000, left by my late brother A. R. Taylor to Miss Ann Lowry, a young lady raised in my father’s family, which is to revert to my brother’s estate after her death, be equally divided between the children of my two friends” áte. The legacy of the testator A. R. Taylor is to the effect that, an investment of $5000 be made in some safe stock, the interest of which was to be paid to Miss Lowry during her life time; and after her death, the sum to revert to the testator’s estate, of which Phillip Taylor was the residuary legatee.

The investment was not made by the executors of A. R. Taylor, but the amount of $5000 was retained by them; and subsequently one of the executors, Lambeth, who is also the dqtive executor of Phillip Taylor, gave a bond, with surely to the administrators of his succession in Missouri, to pay the amount according to the provisions of the will of Phillip Taylor, in the event of the death of Miss Lowry. Miss Lowry having died, and the amount never having gone into the estate of Phillip Taylor, it is obvious that the judgment against the succession cannot be sustained. The legacy ofPhillip Taylor was of the legacy of his brother. That legacy is in the hands of Lambeth; and the remedy of the parties must be sought against him, and not against the succession of Phillip Taylor.

This being our view of the case, it is not material to examine the objections to the validity of the legacy of A. R. Taylor in favor of Miss Lowry, as involving a substitution.

The judgment appealed from is, therefore, reversed; and the suit of the plaintiffs’ dismissed, with costs in both courts.  