
    R. W. Vance vs. Jefferson Davenport and others.
    
      Executor — Single Bill — Failure of Consideration.
    
    A. qualified as executor on a will of 0., admitted to probate in common form, sold tbe goods and chattels of testator and took sealed notes for the purchase money. A later will, appointing B. executor, was after-wards discovered and admitted to probate, and A.’s letters testamentary were revoked and declared null and void. B., having qualified as executor, sued the purchasers from A. in trover, and against some he recovered, and others delivered up the property: Held, that the consideration of the single bill given to A., had failed, and that he could not recover thereon.
    BEFORE WHITNER, J., AT NEWBERRY, FALL TERM, 1857.
    These were separate actions on single, bills, given to tbe plaintiff. Some of tbe actions were by sum. fro. and others were appeals from a magistrate’s decrees in favor, of defendants.
    On November 15th, 1855, a will of David Pitts, late of Newberry, was admitted to probate in common form, and letters testamentary were granted to tbe plaintiff, executor and legatee. This will was dated 16th January, 1855. On the 7th December, of the same year, the plaintiff sold some of the personal estate of testator, and took from the purchasers single bills bearing interest from date, and payable one year after date. These single bills were the causes of action in the cases sued.
    Some time after the sale a will of the same testator, bearing date the 5th March, 1855, was discovered and offered for probate. After some contest this last will was admitted to probate, and Greorge W. Pitts qualified as executor thereof. The letters testamentary granted to the plaintiff were revoked and declared null and void.
    Pitts brought actions of trover against the several purchasers from plaintiff. Two compromised by delivering up the property they had purchased, and against the others recoveries were had, which were satisfied. The plaintiff was not notified to appear and defend the actions of trover.
    His Honor dismissed the appeals from the magistrate, and decreed for the defendants in the other cases.
    The plaintiff appealed.
    
      Sullivan, for appellant,
    cited Wms. on Ex’ors. 368 ; Benson vs- Bynum, 2 N. & McO. 577 ; Price vs. Nesbitt, 1 Hill, Ch., 461; Foster vs. Brown, 1 Bail. 221; Boyd vs. Sloan, 2 Bail. 311; Poag vs. Miller, Dud. 2, 13.
    
      Williams, Jones, contra,
    cited Tol. Law of Ex’ors. 79 j Wms. on Ex’ors, 395.
   The opinion of the Court was delivered by

O’Neall, J.

The plaintiff is the executor of a will of David Pitts, deceased, which was admitted to probate in common form: be qualified, and sold bis testator’s estate, parts of wbicb tbe defendants purchased, and gave for tbeir respective purchases tbe single bills on wbicb these cases rested. Subsequently a later will was found, admitted to probate, and tbe plaintiff’s letters testamentary revoked, and letters testamentary granted to George W. Pitts, tbe executor named in it, who brought trover for the property purchased by tbe defendants and recovered in all, except in two cases, in wbicb tbe defendants delivered up tbe property. So tbe question in all tbe cases is, whether Vance is entitled to recover notwithstanding tbe setting up of tbe last will and tbe revocation of bis letters ?

I am clear that bis title to tbe property sold, failed on the probate of tbe last will, and that of course there was a failure of consideration of the single bills sued on.

Tbe property of the deceased’s goods, is in bis executor, and when it was shown that tbe plaintiff was not bis executor by tbe probate of tbe last will, in wbicb George W. Pitts was appointed executor, and who bad qualified, be (Vance) bad of course no title, and those who purchased from him could have none.

Pitts (George W.) was tbe executor and was rightfully and legally the owner of the property of tbe testator, and tbe defendants could not resist bis claim. Tbe probate of tbe first will and tbe qualification of Vance as executor, and bis sale under it, cannot avail anything. For the last will revoked and annulled tbe first, and carried with it all the' testator’s property to tbe executor, George W. Pitts.

Tbe cases of Poag, adm’or, vs. Miller and Black, Dud. 13, are decisive of these cases, and supersede further argument or illustration.

Tbe motions are dismissed.

■WITHERS, WhitNer, Gloyer and MüNRO, JJ., concurred.

Motions dismissed.  