Under the pleadings and the evidence in this case, we think the court erred in not granting a new trial upon the 4th and 8th grounds of the motion. The 4th ground complains that the court erred in admitting the testimony of Bryan as to the expense and cost of fencing the right of way of the defendants’ road, and the amount of fencing necessary and the cost of keeping up fencing *524of that kind. Mrs. McLendon brought this suit as the executrix of her husband’s estate. She made no pro. fert of her letters testamentary in her declaration, nor did she submit them to the court and jury ; nor did she submit a copy of the will to the court to show how long she was entitled to hold this land as executrix. As far as appears from the record, she was only entitled to hold it a sufficient time to make distribution among the heirs of the testator; or, as far as we know from this l-eeord, this particular land may have been devised to a particular child or children, and if so, it would be manifestly improper to allow the executrix to recover from the railroad company for the purpose of building and repairing the fences in the future. Moreover, it is very doubtful whether she could recover damages of this kind or not, under the law. She had not built the fence, and it is not certain that she ever will build it; and it seems to us that she has recovered damages she has not yet sustained, for a fence she has not built. It is somewhat akin to the case reported in the celebrated Galt’s Decisions, where one man sued another for “a well that he didn’t dig.”
Ve also think the court erred in charging the jury as complained of in the 8th ground of the motion. The charge in substance is that if the stock-gap was maliciously removed, the jury might take that fact into consideration in arriving at what damages the plaintiff ought to recover. This suit was brought upon a contract, and not for a tort; and in actions on contracts the amount of the recovery is the damage sustained by reason of the branch thereof. Our code, §2643, says: “Exemplary damages can never be allowed in cases arising on contracts.” Judgment reversed.