delivered the opinion of the court:

Appellant filed his petition in the Probate Court of Madison county, stating that Edward Wells of'said county died in the year 1848, leaving a will, which was probated in said county. That appellee qualified as his executor, and took possession of his estate and administered the same in part only. That by said will certain property and a considerable sum of money was bequeathed to certain negro slaves belonging to testator, and petitioner, with others, who refused to join in his petition, were made residuary legatees.

That, in the year 1853, petitioner made a partial voluntary settlement with said executor, in which the said executor was allowed to retain the possession of said slaves, together with the bequests to them, under the supposition that the testator had power to make the dispositions contained • in said will in their *802bebalf; but that tbe said executor bas appropriated tbe said álaves and said legacies made in tbeir favor to his own use, and refuses to account for tbe same. That said slaves and legacies remain in bis bands, a portion of said estate, liable to. distribution among tbe residuary legatees, while tbe executor claims to bold them as bis own.

Tbe petitioner then states that tbe testator died seized of real estate not devised by bis said will specifically, wbicb is sought to be made subject to distribution among tbe residuary legatees.

Tbe petition prays for account and distribution, and for a sale of tbe lands for that purpose.

To this petition the appellee filed a general demurrer, with special causes, to tbe whole petition.

Tbe court sustained tbe demurrer and dismissed tbe petition. From this decree an appeal is prosecuted, and this decree assigned for error here.

Admitting that the petition was 'demurrable as to that part which sought distribution of tbe real estate referred to in the petition, yet, upon technical rules applicable in such cases, a demurrer to tbe whole petition, for that cause, should have been overruled. As there was no merit in tbe remaining causes relied on, tbe whole demurrer should have been overruled, and tbe executor required to answer as to tbe .personal estate in bis bands claimed to be subject to distribution.

Let tbe decree be reversed and cause remanded for further proceedings in accordance with this opinion.