Livingston v. Executors of Livingston

3 Johns. 189

Opinion

Kent, Ch. J.

delivered the opinion of the court. The 3,000 pounds directed to be paid by Walter Livingston to his brothers, was a charge upon the real estate. The two devises to him were in consideration that he paid that sum. The legatees were, perhaps, entitled to Haye sued him at law as a tertenant, according, to a decision of - the court of- errors in 1790. He was chargeable only as devisee or tertenant. It was not a personal duty, and of course, none descended to his personal representatives. His heirs are the only persons chargeable at law, as ter™ tenants or owners of the land. There is no ground whatever to raise an implied assumpsit from the devise itself. The first count in the declaration is, therefore, ¿rroneous.

But as there are other counts in the declaration, t© which no objection is made, and as the damages were, assessed separately on each count, the plaintiff has leave, according to his suggestion, to enter a nolle prosequi on tiie first count, and take judgment on the others.

Van Ness, JV having been formerly concerned as counsel in the cause, gave no opinion.

Judgment for the plaintiff.