Fulcher v. Commonwealth, ex rel. Beall , 26 Ky. 592 ( 1830 )

Judge Buckííer

delivered the opinion of the court.

Tins was a suit brought for the benefit of a devisee, to recover from an administrator, with the will annexed, the amount of bis legacy; in which there was a verdict and judgment for the defendant in error, to reverse which, this writ of error is prpse-cuted.

The bond, on which the suif is founded, has conditions annexed to it, substantially, if not literally, those prescribed by the statute, foran ordinary administration bond. It contains no such condition, as that pointed out, for the bond of an administrator, with the will annexed, concerning the payment of legacies.

By the pleadings in the cause, the validity of the declaration was brought before the court. Wre are of ■opinion, that it exhibited no cause of action. See the cases of Moore and others vs. Waller, I. Marshall, 488, and Babour, &c. vs. Robertson’s heirs, I Littell, 95.

The judgment of the circuit court must be reversed with costs, the verdict set aside, and the cause remanded for further proceedings, to be had consistent with this opinion.

Hard, for plaintiffs; Denny and Triplett, for defendants.