
    VANLEAR AND WIFE v. HASLET’S EXECUTOR.
    Assumpsit — not implied against an executor with, assets.
    Assumpsit will not lie against an executor for a distributory part of the testator’s estate, without an express promise to pay — and admission of assets raises no implied assumpsit.
    The plaintiff declares in assumpsit for one-seventh of the residue of the testator’s estate, and avers a settlement of the estate with *the Probate Court, and a balance in the hands of the exe- [458 cutor. Plea, non assumpsit, and notice of setoff.
    
    
      Marsh for the plaintiff.
    
      B. Tappan contra.
   WOOD, J.

The only question submitted to us, is whether assumpsit will lie for a legacy upon an implied promise by an executor, arising from the admission of assets. The case in 5 T. JR. 690, expressly decides that such recovery cannot be had. The case might be different, if there were proof of an express promise by the executor, and an admission of assets.

The plaintiff had leave to enter a non suit.  