Majority
p. 127Holloback v. Van Buskink, surviving administrator, &c. Racroth et ux. v. The Same.
Syllabus
Assumpsit.Assumpsit will lie on the part of residuary legatees, against an administrator cum testamento annexo, without proof of an express assumption by him.[1]
These were actions on the case, in which the plaintiffs declared on a general indebitatus assumpsit, for money had and received by the defendant (who was the surviving administrator cum testamento annexo of Catharine Hollobaok) to their use, respectively. They claim, distributive shares in the residuum of the estate of Catharine Hollobaok, under her will: but it was questioned, whether such actions would lie, without proving an assumption on the part of the defendant.
however, declared their opinion, that the actions might be maintained, without proof of an express assumpsit: and verdicts were, accordingly, given for the plaintiffs, with leave to move for new trials.[1]
(b) (b) 5) Decided before Yeates and Smith, Justices, at Northampton nisi prius, in October 1795.