#### The Roanoke Navigation Company *v.*John H. Green, *Ex'r. of*Solomon Green.

Where a testator in the event of the death of his executor, directed the County Court to appoint some person to administer his estate, the executor of the first executor, is not the executor of the first testator.

This was a scire facias, which recited that the plaintiffs had obtained a judgment against *Solomon Green,*as the executor of *William Green-;*that *Solomon Green*was dead, having made a will, whereof he appointed the defendant executor, and praying to have execution upon that judgment, against the goods of the defendant’s testator.

Plea — In substance, that although the defendant’s testator was the executor of *William Green,*that the defendant had never administered any. of the chattels of *William,*neither was the defendant the executor of *William ;*because, that *William,*by his will, directed the Court of Pleas and Quarter Sessions of the county of Warren, *435tvhere be resided at the time of bis death, in case of the deeth of *Solomon,*bis executor, before be liad fully ad- , , , , ministered, to appoint some suitable person to take charge of, and administer the residue left unadministered by his executor. And further, that *William,*by bis will, gave to the person thus to be appointed by the County Court, the same powers as to such of bis estate as should be so unadministered, as be bad given bis executor, the defendant’s testator.

T?ie *^ &nmbur< v*firmed,

Replication' — Admitting the plea, but averring that the defendant was executor to *William,*because the , County Court had never appointed any person to administer the goods of *William,*unadministered by *Solomon.*

Demurrer and joinder — His Honor, Judge DaNiex, on the last Spring Circuit, at W; rren, overruled the-demurrer, and gave judgment for the plaintiffs, from, which the defendant appealed.

*Gaston*and *W. H. Haytv/md,*for thedefendant.

*Badger,*for the plaintiff,

relied upon *Gran bury v. Mhoon, (JinU*1 *vot. j)<*456 )

Henderson, Chief-Justice.

The affirmations of the-court of probate cannot be controverted, in this case, the court affirms, that *John H. Greeen*is the executor of *Solomon Green,*and that *Solomon,*was the executor of *William;*but it does not affirm, that *John*is the executor of *William,*That is an inference, drawn by the law,, in certain cases; as where- the executor'of the first testator, was sole executor, or surviving executor; but not where the first testator by li is will, declared that the executor of his executor should not execute his will, as I think *William*did in this case, by appointing.' some other person to execute it, upon the death of Solomon. A testator may a ppoint that his executors shall act jointly, or in succession. If these facts do not appear, they may he introduced by plea, as in the present case, and I adhere to the opinion given *in Grimbnrij*v, *Mhaati %*that a copy of the will does not necessarily ac~ company the letters testamentary, and even if they did, la this case, it would only he again putting that on the *436record which already as fully appears, as if the probate had been set out at large, that *William Green*directed some other person, except the executor of *Solomon*to *execute*his will. I think the demurrer should be sustained, and the judgment reversed.

Per Curiam. — Judgment reversed.