Wheeler

This is an appeal from a judgment rendered after an order sustaining a demurrer, the plaintiff electing not to amend.

The complaint alleges that one Carmen died testate, devising all the estate to plaintiff; that at the time of his decease he was the owner of, and seized and actually possessed, and in the actual occupancy of, a tract of land, described by metes and bounds; that the will of the testator, appointed defendant Bolton and one Adams executors; that the will was probated, and both the executors qualified and entered upon the discharge *304 of their duties; that thereafter, in 1855, Adams departed from this State, and has not since returned; that in 1875, defendant rendered his final account, and the Probate Court, by its decree, adjudged that defendant came into the possession, as executor, of said real estate, and was chargeable with the possession thereof, that the devisee (plaintiff) was entitled to have and receive said real estate, and that defendant be charged with said premises; that'April 17th, 1876, the Probate Court made a decree of final distribution, in which decree plaintiff was adjudged to be entitled to the possession of said real estate, and defendant…