
    Taber v. Packwood.
    In the Court below,
    Joseph PackwOoü, Plaintiff; Job Taber, executor of Elizabeth Westcote:, deceased, Defendant.
    
    An action will not lie, for taking* and detaining’person-si property, belonging’ to the plaintiff, as heir at law of the deceased, before it has been distributed to him, under a regular administration.
    Jl HE declaration alleged, that on the 28th of May, 1776, Phebe Shackmaple made her last will and testament, by which she devised and bequeathed to John Pachvood and Joseph Packivood, all her estate, of every kind or nature whatsoever, upon condition they should arrive to the age ol twenty one years ; , that she also gave, by the will, the use of said estate to Eliza~ belli Westcote, during her natural life ; that said Phebe, soon after executing said will, died, leaving personal estate, in money, and other articles, to the amount and value of 231/. 19s. 4d. that said Elizabeth thereupon took the possession and use of the same ; that the Pack-woods both arrived to the age of twenty one years, and soon afterwards died, John dying first, aged twenty three, and then Joseph, aged twenty four; and that the plaintiff is heir at law of Joseph, the survivor ; that said Elizabeth afterwards made her will, appointed the defendant her executor, and died, in possession of all s ' property, which carne into the hands of the defendant, and which he wrongfully retained, and refused, upon special demand, to deliver to the plaintiff.
    1803.
    To this declaration the defendant pleaded, that as executor to the last will and testament of said Elizabeth Wes test t, he did not hold and retain anv monies, goods, or estate, which were the property of said Joseph Pack-wood, at his death.
    Issue was joined to the Court, who found for the plaintiff, and rendered judgment, that the plaintiff recover of the defendant die sum of Q 672, and his costs.
    The insufficiency of the declaration was assigned for error.
    
      Ingersoll and Gurley, for the plaintiff in error,
    
      A. Spalding and Hubbard, for the defendant.
    The judgment of the Superior Court was reversed, Ellsworth and Hillhouse, Asts. dissenting.
   By the Court.

The personal estate, bequeathed in the will of the said Phebc Shacktnaple, and which is claimed by the defendant in error, in his action, is subject to the laws, which respect the administration of the estates of deceased persons, being in the first instance, assets for the payment of debts, if any, and if not, to be distributed to the heirs at law; and, therefore, the right of action, in this case, if an action can be maintained, does not belong to the defendant in error, as heir at law, the only capacity, in which he sues ; but to the executors or administrators on the estate of the deceased John and Joseph Packwood.  