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HARPER V. BUTLER, 27 U. S. 239 (1829)

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U.S. Supreme Court

Harper v. Butler, 27 U.S. 2 Pet. 239 239 (1829)

Harper v. Butler

27 U.S. (2 Pet.) 239


By the law of Mississippi, the assignee of a chose in action may institute a suit in his own name. When, therefore, an executor, having proved the will of his testator, in Kentucky, had assigned a promissory note due to the estate by a citizen of Mississippi, the suit was well brought by the assignee without any probate of the will in that state.

The only question submitted to the court was whether the assignee of a chose in action, assigned by an executor in the state where he had proved the will and taken out letters testamentary, where the debt was contracted and where the testator lived and died, could maintain an action in another state without a new probate and new letters testamentary taken out in the state in which the action was brought.

The question arose on the demurrer of the defendant to the plaintiff's replication, setting out the probate, letters testamentary, assignment, &c. The district court sustained the demurrer and decided against the plaintiff's right of action.

The causes of demurrer shown by the defendant in error were:

1. That the replication does not allege and set forth that the will of the testator was proved, and that letters testamentary were granted to the executor in the State of Mississippi.

2. That the replication does not show that the will of the testator was proved and probate thereof granted to the executor or any other person within the jurisdiction of the court, nor that it was granted by a tribunal of competent jurisdiction. chanroblesvirtualawlibrary

Page 27 U. S. 240

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