Legal Opinion

Thayer v. Wendell

U.S. Circuit Court for the District of Massachusetts

Decided May 15, 1812PublishedCited by 5 opinions

This was an action of covenant, brought by'the plaintiff [Levi Thayer] against the defendant [Oliver Wendell], for a breach of the covenants contained in a deed of conveyance of land, dated the 2d day of August, 1792, and giv-n by the defendant, as sole surviving executor of the last will and testament of John Erving, deceased.

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This was an action of covenant, brought by'the plaintiff [Levi Thayer] against the defendant [Oliver Wendell], for a breach of the covenants contained in a deed of conveyance of land, dated the 2d day of August, 1792, and giv-n by the defendant, as sole surviving executor of the last will and testament of John Erving, deceased. By the case, as presented in the pleadings, it appeared that one James Gordon was indebted to said Erving in a considerable sum of money; that James Gordon died intestate, and after his decease, and while there was a rightful administrator on his estate, the defendant…

1Opinion of the Court

STORY, Circuit Justice.

Since the decision of the supreme court of this commonwealth in Mitchel v. Lunt, 4 Mass. 654, it is admitted, as settled law, that on a judgment against an executor de son tort, the real estate of the intestate cannot be set off to satisfy the execution. It is contended in behalf of the plaintiff: 1. That the covenants of Wendell, although in his capacity as executor, and not otherwise, bind him personally. That the true meaning of the words “not otherwise” is, that the funds out of which payment is to come in case of a breach, are to be the assets of the estate *906■of…

2Cases cited1 opinion

  1. Mitchel v. LuntMassachusetts Supreme Judicial Court · 1808

3Cited by5 opinions

  1. Charles Nelson Co. v. MortonCalifornia Court of Appeal · 1930
  2. Packard v. KingmanMichigan Supreme Court · 1896
  3. Empire Fire Proofing Co. v. ComstockAppellate Court of Illinois · 1905
  4. Savage v. RixSuperior Court of New Hampshire · 1838
  5. Deutsche Bank Nat'l Trust Co. v. BurkeDistrict Court, S.D. Texas · 2017

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