
    COURT OF APPEALS, (E. S.) JUNE TERM, 1822.
    Welch vs. The State, use of Smith.
    a plea of the “™tVbalitó0"A action on a testamentavy bontl of more than 12 years standing, where the person bringing th$ action does not become of age until 17 years after the date of the bond, and 4 years before the institution of the suit.
    Appeal from Kent county court. An action of debt was brought on the 21st of December 1812, on the testamentary bond exécuted by Taracy Smith and John Greenwood, as executors óf T. Smith', deceased, dated the 7th of August 1791: The defendant; (now appellee,) being a surety in the bond, pleaded general performance arid the act of limitations. The facts of the case, as agreed upon by the parties, were as follow, viz: T. Smith by his will, dated the 11th of March 1791, devised the whole of his real and personal estate to his Wife Taracy, during her widowhood, excepting £50, to be raised out of his moveable estate, and put out upon interest, till his son, T. Smith, arrived at the! age of 21; when he was to have the £50, and all the testator’s land, to him and his heirs, and the wife to have the interest of the £50 yearly; as it became due. After his wife’s death, his whole estate, both real and personal, was to bé his son T. SmitlJs, and his heirs, and in casé liis wife married again, her brother J. Greenwood was to take the estate out of her hands, and her interest was to cease in every part of it. He appointed his wife and Greenwood joint executors; &c. The testator died about the 1st of July 1791, and letters testamentary were grant-fed on the 17th of August 1791. On the 20th of July ¿798, Greenwood returned his final account, by winch there appeared to bé a balancé due' the estate of the testator, ori that day; of £117 13 8. No further accounts, appeared to have been returned tothé orphans court. T. Smith, for whose use this suit is brought, is the son of the testator, and the devisee mentioned in his will, and he became’ of age in July 1808. Taracy Smith, the widow of the téstator, intermarried with Jl Pearson, within five inonths after the testator’s death; and was living at the' time of the institution of this suit. She had not renounced her interest under the' will. No part of the £50. devised to T. Smith, nor any other part of the personal estaté' of the testator, whs paid to' him, nor was the £50 ever put out at interest for him. On this statement the .county court gave judgment for the plaintiff, and the defendant appealed to this court, Where the cause Was argued before: Chase, Ch. J. Buchanan, Martin; Dorsey, an’d Ste-< phen, J. by
    
      Chambers, for the Appellant; and by
    
      Tilghman, for the Appellee
   JUDGMENT AFFIRMED.  