Ira Hay vs. Elisha Green, Administrator, 12 Cush. 282

By the Court. We are of opinion that Martin Green’s distributive share of his father’s estate, though it was uncertain as to amount, and as to the time when it would become payable, was a chose in action which passed to Gerry, the assignee, by the assignment of Martin’s estate. But we are also of opinion that the plaintiff, as purchaser of that chose in action, at the assignee’s sale, cannot maintain an action in his own name against this administrator, to recover the amount due thereon. By the insolvent law, a right of action on the decree of distribution vested in the assignee, but not in his vendee.

It is contended, however, that the defendant has expressly promised the plaintiff to pay him the sum that was due to Martin, and, therefore, according to the decisions in like cases, the plaintiff may maintain an action in his own name. Crocker v. Whitney, 10 Mass. 316; Mowry v. Todd, 12 Mass. 281. Assuming this as a correct doctrine, yet it will not aid the plaintiff in this case. For the testimony, in the first place, does not show that the defendant ever promised the plaintiff to pay the distributive share to him, except subject to a set-off.

But, in the second place, the promise, whatever its terms or conditions may have been, was oral only; and the defendant, being administrator, and sued as such, is not liable on his promise, unless it is in writing. Rev. Sts. c. 74, §1. The verdict is set aside, and a new trial is to be had in this court, unless the plaintiff elects to discontinue or become non-suit.