
    John L. Tucker vs. James Haughton.
    By the last will of A., his brother B. was appointed his executor, and named as the legatee of the snrplus of his property after the payment of his debts. Letters testamentary were granted to B. who gave bonds with his two partners only as sureties. B. loaned $5,000 of his brother’s estate to the firm of which he was a member, and the firm subsequently failed. B. was removed from his trust as executor, and C. was appointed in his place. C. having obtained various chosea in action belonging to A.’s estate from B., under the authority of the probate court, compromised with and released B. as a debtor of the estate. The estate was subsequently represented insolvent, and commissioners were appointed to settle it. D., a creditor of the estate, whose debt remained unpaid, addressed a letter to B. respecting it; and B., in his reply, after setting forth in detail the condition of the estate said: “ And now if I should have the ability, it will be the first act I shall perform, to place in their (the creditors’) hands the amount which was lost by the firm of B. & Co., which would have paid to them not far from two thirds of their several claims.” D. brought a suit against B. on this letter, alleging a promise by B. to pay D.’s claim against tb 8 estate, and it was held that the action could not be maintained.
    This was an action of assumpsit to recover of the defendant a debt originally due from his brother, Richard Haughton. The validity of the claim against said Richard was not in dispute. The case was heard in the court of common pleas,, before Bigelow, J., upon the following agreed statement of facts:—
    Richard Haughton, of Boston, by his will, dated April 16, 1841, devised and bequeathed all his «state, real, personal, and mixed, to his brother, James Haughton, of Boston, the defendant, who was also named executor in the will. Richard Haughton died April 17, 1841. The will was admitted to orobate May 17, 1841, and letters testamentary were granted to James Haughton, who, as principal, with his partners in Dusiness, George W. Heard and Theodore P. Hale, residents of Boston, and doing business under the firm of James Haugh-ton & Company, as sureties, signed the probate bond.
    The first account of the executor, containing a list of the lebts owed by the estate of Richard Haughton, verified by the oath of the executor, among which was this debt of the plaintiff’s, was allowed on the 26th day of September, 1842. In this account, the debts of the estate were put at $20,806.76, and the assets, after deducting cash paid for funeral expenses, and the amount of a mortgage upon personal property which had been foreclosed, were stated at $16,082.25.
    Subsequently, James Haughton, as executor, loaned the sum of $5,000, of the assets of Richard Haughton, to the firm of James Haughton & Company, and the same has never been repaid.
    
      On the 17th of October, 1842, on the petition of some of the creditors of Richard Haughton, among whom was the plaintiff, James Haughton was removed from his trust as executor, and on the 14th of November, 1843, E. G. Austin was appointed administrator de bonis non of the estate of Richard Haughton.
    On the 9th day of March, 1843, James Haughton & Company (George W. Heard and Theodore P. Hale) filed their petition in insolvency, before Joseph Willard, Esq., a master in chancery, and, on the 28th of the same month, each of them received his discharge from his. joint and separate debts.
    On the 27th of November, 1843, the administrator de bonis non was allowed by the judge of probate to compromise the claim of Richard Haughton’s estate upon James Haughton; and, on the 4th of December, 1843, in pursuance thereof, he gave to James Haughton a discharge and release. In his first account, allowed May 27, 1844, the administrator charged himself with $12,453.32, received under the compromise from James Haughton. A list of debts, to the amount of $16,094.59, was at the' same time filed, the estate was represented insolvent, and William Minot and George S. Hillard, Esquires, were appointed commissioners of insolvency on the estate. No return has been made by the commissioners.
    On the 10th of March, 1845, in answer to a letter of the plaintiff, of March 5, making some inquiries relative to the estate of Richard Haughton and its settlement, the defendant wrote, informing the plaintiff of the condition of the estate, and said:—
    “ I have been thus particular to state the facts to you, for I deem it my duty to do so, and if mortification and chagrin would pay the unpaid portion of my brother’s debts, they would have been paid three years since. And now, if I should have the ability, it will be the first act which I shall perform, to place in their hands the amount which was lost by the firm of James Haughton & Company, and which would have paid to them not far from two thirds of their several claims. To you particularly, whose kindness towards my brother was always so affectionately spoken of by him, I must be allowed to say, that I most deeply and sincerely regret that your claim remains unsettled.”
    For the purposes of the trial, the defendant admits that he is now of sufficient pecuniary ability to pay this claim of the plaintiff’s and the amount belonging to Richard Haughton’s estate, lost by the firm of James Haughton & Company.
    If, upon the foregoing facts and pleadings, the plaintiff can maintain this action, he is to have judgment for such- amount as the court shall find due from the defendant. If he cannot maintain this action, he is to become nonsuit.
    Judgment having been ordered for the defendant, the plaintiff appealed to this court.
    
      G. Imil, for the plaintiff.
    
      J. G. King, for the defendant.
   Shaw, C. J.

This was an action of assumpsit, to recover a balance of account, amounting, with interest, to about 400 dollars, claimed to be due to the keeper of the Tremont House from the defendant. It appeared that Mr. Richard Haughton was the original debtor of the plaintiff, and that he died in 1841, leaving a will, by which the defendant was appointed his executor, and named as the legatee of the surplus of his property, after payment of his debts.

It was supposed, at the time, that this surplus would be a large one. The will was proved, and letters testamentary were granted, at the probate office, to the defendant, who gave the required bonds, with his two partners only as sureties. There was, therefore, no security but that of the mercantile firm, of which the defendant was the principal member, and if the principal failed, it was likely that the firm would also fail. The sum of 5,000 dollars was subsequently lent by the defendant to the firm, and, in the spring of 1843, the firm failed, and were discharged under the insolvent law. In November, 1843, the defendant resigned his trust, and Mr. E. G. Austin was appointed in his place. He obtained from the defendant various choses in action, of the estimated value of about 12,000 dollars, and, under the authority of the probate court, upon the receipt of so much, compromised with and released Mr. Haughton, as the debtor of the estate. The estate was subsequently represented to be insolvent, commissioners were appointed to settle it, and they have as yet made no return.

The debt due to Mr. Tucker remaining unpaid, he addressed a letter to the defendant, requesting information with regard to it, and the defendant, in reply, wrote a letter, dated March 10, 1845, on which this action is brought. The letter. expresses extreme regret at the circumstances which had prevented the payment of the account. It begins by stating that, soon after the death of the testator, the defendant had written to the plaintiff, expressing great confidence that any claim he might have would be immediately paid, and saying that he thought the bill due from his brother must be small, as he died on the day when he was about to sail for Europe, and the defendant had understood him to say, that his bills at the Tremont House were paid. The letter is very penitential in its tone, and states all the circumstances of the case very fully; and the defendant says- he has been thus particular in stating the facts, from a sense of duty; that, if mortification and chagrin would pay the debts he owed to his brother’s estate, they would long since have been paid, and that, if he had the ability to do so, it ought to be and would be his first act, to place in the hands of the executor the whole amount due from the firm of James Haughton & Co., in addition to what he had already paid over, which would make enough to pay not far from two thirds of the debts of the estate. He concludes by expressing his deep regret that a claim should remain unsettled which was due to the plaintiff, between whom and his deceased brother there had been so much mutual regard and affection.

In the agreed statement of facts, the defendant admits that he has sufficient pecuniary ability to pay the claim of the plaintiff, but not the like proportion of the whole amount lost by the firm of J. Haughton & Co. Upon these facts, the court are of opinion that the action cannot be maintained.

In the first place there is no promise to the plaintiff. No particular form of words is necessary to constitute a promise.

If the paper shows that the writer took upon himself the duty of paying, it amounts to a promise. In this letter, the defendant, expressing his deep regret at the loss of the creditors of the estate, through the failure of James Haughton & Co., and his mortification, &c., then adds the words relied on as a promise. “ And now if I should have the ability, it will be the first act I shall perform, to place in their (the creditors’) hands, the amount which was lost by the firm of James Haughton & Co., and which would have paid to them not far from two thirds of their several claims. To you,” &c., adding some words of special personal kindness, but no assurance or stipulation of any kind respecting his separate claim.

This is the only paper, which contains any contract, stipulation, or assurance of any kind, on the part of the defendant.

In the first place, here is no promise to pay money to the plaintiff. It is not that the words are not sufficient; when there is a good consideration, and one says to the other, it shall be my first act, on a certain contingency, to pay, it is a promise to pay. But here the extent of his undertaking is, to replace money to a certain amount in the hands of the creditors. The only construction is, not to pay any creditor any proportion of his particular debt, but to replace, in the hands of the administrator and personal representative, a sum equivalent to a loss the estate had sustained. The proportion which it would be of the whole claims was a mere estimate.

Again, it is urged that the defendant says, that such pay ment on his part would pay two thirds of the deficit. These are merely words of assurance.

2. But besides the above consideration, showing that the paper proves no promise to the plaintiff, there is another quite as strong; there is no consideration moving from the plaintiff to the defendant.

So far as his liability as executor forms the consideration for a promise, it had been absolutely released by the authority of the probate court. The plaintiff had done nothing, and said nothing, which could be a consideration. There are several other considerations applicable to the case, but those already mentioned are decisive. According to the agreement in the case, the

Plaintiff must be nonsuit.  