Sterrett

The questions involved in this appeal arise upon demurrer to the complaint and upon the contention that the judgment is not warranted by the findings. I think all these points are well taken.

The complaint contains two counts. In the first, after stating the death of the testator, the probate of the will, and appointment and qualification of the executrix, and that all the property of the estate was given to her in trust with power to sell without obtaining an order authorizing her so to do, it is averred that she, for a good and valid consideration to her in hand paid by plaintiff, sold and- agreed to deliver to plaintiff five hundred of the best sheep of a band of eight hundred then in her possession as such executrix; and that shortly thereafter “plaintiff leased and let said five hundred sheep to said executrix upon the following terms: The said executrix agreed to take, care for, and keep said sheep so sold to said plaintiff as aforesaid, and when said plaintiff should call for the same agreed to surrender and deliver over to said plaintiff said five hundred head of sheep, together with one-half the increase thereof and one-half the wool produced by said sheep.”

It is shown…