The opinion of the Court was delivered by
Skinner, Ch. J.The facts stated in the first count of the declaration, are, that the defendant, on the 25th of December, 1809, was appointed administrator on the estate of Nathan Col-grove, deceased; that Eunice Fillmore, wife of the defendant, was an heiress to the estate, and thereby the defendant and wife were entitled to a share of the estate. That the defendant and wife, on the 18th June, 1810, bargained and sold to the plaintiff all their title, interest and claim to the estate; and on the 13th May, 1822, the defendant, as administrator, had in his hands the sum of $479,26 belonging to the heirs, which was then ordered by the judge of probate to be paid over to the heirs within ten days, of which sum $59,90 was ordered to be paid said Eunice; that the plaintiff demanded this sum of the defendant, being the sum received by him.and his wife as heirs to the estate, on the 24th May, 1822.
The second count is for money had and received. To this declaration the general issue is pleaded, as also the statute of limitations; and upon the trial of the cause in the county court, the plaintiff offered in evidence a deed executed by the defendant and his wife, on the 18th June, 1810, by which they bargain and sell to the plaintiff, all their right as heirs to the estate of the deceased, which was objected to by the defendant, and rejected by the Court; whereupon a verdict was taken for the defendant, and judgment rendered thereon; to reverse which judgment this writ of error is brought. And the only question for the Court to decide, is, was the evidence properly excluded ?
In support of the decision of the county court, the defendant insists, that the evidence offered, being a specialty, ought to have been declared upon, and that it cannot be received in evidence in an action of assumpsit. That where there is a contract under seal, the action ought to be debt or, covenant.
No action of covenant would lie in this case, as there was no breach, nor indeed any covenant in the deed, upon which a breach could arise. Though an action of debt might have been brought for the money, to which the plaintiff was entitled, no such'action could be sustained upon this instrument, the money not having been received, as no indebtedness is therein acknowledged, nor is there any express undertaking to pay over to the *350Pontiff the amount of the share transferred ; this the law implies.
Jonas Clark, Wm. Page and C. K. Williams, for the plaintiff. Chauncey Langdon, for the defendant.By the deed, the right of the defendant and his wife as heirs to the estate of the deceased, was transferred to the plaintiff; and whatever sum may have come into the defendant’s hands in right of his wife, or whatever sum he may have received as administrator, and would have been entitled to hold in such right, but for the transfer to the plaintiff, must be considered as received to the use of the plaintiff. The evidence offered to show the right of the plaintiff to the money claimed, was the proper and only evidence that could have been admitted to prove that for which it was offered, viz: the transfer to the plaintiff of the claim of the defendant and wife, to the estate of the deceas- . ed.
No question is made by the parties, but that the plaintiff, by force of the deed, is entitled as well to the distributive share as that which might be derived by descent.
As to the evidence necessary for the plaintiff to give on the trial, to show that the defendant has received money to his use, no opinion is intended to be expressed.
Judgment, there is error, See. and the judgment of the court is reversed.