Whitaker v. Whitaker
New York Supreme Court
THIS was an action of assumpsit, brought against the defendant, as surviving executor of the last will and testament of Edward Whitaker, deceased.
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THIS was an action of assumpsit, brought against the defendant, as surviving executor of the last will and testament of Edward Whitaker, deceased. The first count in the plaintiff’s declaration, stated, “ That whereas Edward Whitaker, deceased, in his life-time, to wit, on the twentieth day of March, 1802, at Kingston, &c. was indebted to the plaintiff in the sum of 2,000 dollars, lawful money, &c. for money by the plaintiff, before that time, lent and advanced to the said Edward, in his life-time, and at his special instance and request; and the said Edward, being so indebted in his…
1Opinion of the CourtSpencer, J.
The defendant’s counsel made several points on the argument, two of which only I deem it requisite to examine.
1. The validity of the declaration; and, 2. The testator’s liability in consequence of the receipt of the 29th of September, 1779.
The objection is that the promise, to be rendered binding, ought to have been in writing, or alleged to have been made in consideration of assets. The counsel seemed to suppose, that the judgment on this count would be de bonis propriis, and that the executor would, in this mode of declaring, be prevented from pleading plene administravit. If such would be…
2Cited by16 opinions
- Westervelt v. . GreggNew York Court of Appeals · 1854
- Betsinger v. . ChapmanNew York Court of Appeals · 1882
- Tayloe v. GouldNew York Supreme Court · 1851
- Kenyon v. SaundersSupreme Court of Rhode Island · 1894
- McClanahan v. DavisSupreme Court of the United States · 1850
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