¶1The declaration is clearly bad. The cause of action, stated in the last count, arose after the death of the testatrix, and could not be joined with a cause of action arising in her lifetime. It would require different judgments. The defendants would be personally liable On the cause of action as stated in that count; for the promise is not alleged to have been made by them as executors. They were only named as executors, as a mere des crip tio persona, (Bridgen v. Parkes, 2 Bos. & Pull. 424. Jennings v. Newman, 4 Term Rep. 347. Carter v. Phelps's administrator, 8 Johns. Rep. 440.) That the funeral expenses of the defendants’ testatrix would be payable out of her estate, is no answer to the form of the declaration. It was a cause of action arising after her death, and for which she could have made no promise. There must be judgment for the defendants, with leave to amend, on payment of costs.
12 Johns. 349
Myer v. Cole
Decided October 15, 1815
New York Supreme Court · decided 1815-10-15
THIS was an action of assumpsit-. The declaration contained three counts. The first count was for money paid, &c. goods sold, &c. by the plaintiffs’ testator, to the defendants’ testatrix, in their lifetime, respectively, and the promises alleged to have been made by the defendants’ testatrix to the plaintiffs’ testator. The second count was for work and labour, and the promise laid in the same manner as in the first count.
Good law ✅— No negative treatment on recordhow we know
Decided 1815-10-15
How this case has been cited
Cited by 14 later decisions — most recently May 1919
14 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
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