Armstrong v. Armstrong.

pellants, the right of the law to make that promise before distribution is clear, upon the well-known principle that the mere promise to give a thing does not, before delivery, bind the promissor, or confer any right upon the promisee.

But it is argued and not denied, that the law cannot be so changed after a man's death, as to exempt his estate from the payment of those debts created in his lifetime; and some effort has been made to apply that doctrine to this case. Appellants, however, cannot place themselves on the same footing with creditors. When two men make a contract, it is implied, if not expressed, that not only they, but their respective estates, shall be bound for its fulfilment. Creditors claim upon this ground, and any law, therefore, declaring that a decedent's estate shall not be liable for his debts, is a law impairing the obligation of contracts, and void. (Stat utes of Oregon, p. 25, Organic Act.)

Appellants do not pretend to claim any part of the estate, in question, by virtue of a contract. They claim by operation of law; but before their claim could be allowed, the law had ceased to operate in their favor. Appellants, we think, had no vested rights in the estate of their deceased brother, according to the authorities. Williams, in his work on Executors, p. 790, says, that "an executor or administrator has the same property in the personal effects of an estate as the deceased had when living, and has the same power to bring actions in reference thereto."

"On the death of the testator or intestate, his executors or administrators, in point of law, are the owners of the goods which belonged to him, and may declare for them as their own, when damaged by another." (Hollis v. Smith, 10 East. 295.)

"It is a general rule of law and equity, that an executor or administrator has an absolute power of disposal over the whole personal effects of his testator or intestate, and that they cannot be followed by creditors or legatees into the hands of the alienee." (Whale v. Booth, 4 T. R. 625; Nugent v. Gifford, 1 Atk. 463.)

Armstrong v. Armstrong.

"After the death of the deceased his personal property may be considered in abeyance until administration is granted; and is then vested in the administrator, by relation, to the time of the death." (Jewel v. Smith, 12 Mass. 309; Lawrence v. Wright, 23 Pick. 128.) In the case of Carpenter v. Commonwealth of Pennsylvania, 17 How. 456, the Supreme Court of the United States assert the doctrine here maintained. In 1826 the State of Pennsylvania passed a law by which, under certain circumstances, "all inheritance, being within that commonwealth," should be subject to a tax. William Short, a citizen of Pennsylvania, died in 1849, leaving certain personal property in New-York to citizens in that State. In 1850 the legislature of Pennsylvania passed an act, declaring that the prior act of 1826" should be so construed as to relate to all persons who have been, at the time of their decease, or now may be, domiciled within this commonwealth, as well as to estates." The Supreme Court held, that the title to the property in New-York did not vest in the devisees there in 1849, but belonged to the executor in Pennsylvania till distribution made, and was, therefore, taxable by virtue of the act of 1850. If personal effects do not vest in devisees under a will upon the death of a testator, they certainly cannot vest in heirs upon the death of an intestate. We conclude, in every point of view, that the act of our Assembly, of 1854, before cited, was and is applicable to the distribution of all estates since its passage, without regard to the time of the intestate's decease, and therefore affirm the judgment of the Probate Court.

OLNEY, J., did not sit in this case.

Judgment affirmed.

CASES

ARGUED AND DETERMINED

IN THE

Supreme Court of the United States,

FOR THE

TERRITORY OF OREGON,

June Term, A. D. 1856, at Portland.

The act of Assembly, suspending payment of the claim in question, held valid.

Pratt & Campbell, for plaintiff.

Sheil & Grover, for defendant.

DEADY, J. Upon the admitted facts in this record, and the law arising thereon, the court have concluded that the writ of mandamus should be denied, and so decide. This decision is placed upon the following grounds, without intending in any manner to conclude any other questions that may have been raised in the course of the argument, that is to say that whether the act of the Provisional Government

Young v. Territory.

of December, 1844, be a contract supported by a legal consideration, or is an ex parte promise, resting upon mere moral considerations, and the continuing good-will and ability of the promissor; in either view it was, from the beginning, without a legal remedy for its violation or suspension, and its obligations in legal contemplation, incapable of being enforced. The act of January, 1855, allowing the suit by the plaintiff in the Supreme Court, gave him the privilege or opportunity to establish his legitimacy, his identity, and the amount claimed. The same thing might have been done under the now and then existing laws, before the auditor of the territory, together with a certificate of the latter of the result, to be laid before the Assembly for further action. At this point of time, the Assembly repealed so much of the act of January, 1855, as directed the auditor to issue his warrant for, and the treasurer to pay, the amount of the judgment, thereby indefinitely suspending the payment of the claim. Whatever may have been the policy or necessity of this legislation is not for this court to inquire. We think and decide, that the Assembly had the power so to legislate, that, by so doing, the plaintiff was only restored to his original situation. The original obligation was in no way impaired, and now, as then, the plaintiff's claim, whether founded upon legal or moral considerations, still exists, dependent upon the will of the Assembly for an appropriation of the public money for its payment, or other action equivalent thereto.

Mandamus denied.

Goodwin v. Barnhart.

BENJAMIN F. GOODWIN, Plaintiff, v. WILLIAM H. BARNHART, Defendant.

Reserved from Multnomah.

When and how the effect of a guaranty may be averred.

CRANE, ROGERS & Co. drew their bill on Adams & Co., of San Francisco, in favor of Cole, for $1,089. In the margin of the bill the sum was stated in figures, $1,989,4%. Cole endorsed upon the bill a request upon Adams & Co., of Portland, to pay to Barnhart the amount stated in the mar gin. The Portland house gave to Barnhart the marginal sum, on his agreement to refund it "in case the full amount is not paid on presentation." The house of Adams & Co., at San Francisco, becoming insolvent, the house at Portland failed to realize any thing on the bill, and their effects having passed into the hands of Goodwin, as receiver, this suit is brought on Barnhart's guaranty to recover the amount of the bill. The answer, among other defences, sets up, that Adams & Co., at both places, were one firm, and that it was the agreement, and the true intent and meaning of the guaranty, that $1,989 was the sum intended to be expressed in the bill. The identity of the two houses is traversed by the replication, and the averment of what the agreement was is demurred to.

A. Campbell, for plaintiff.

A. E. Wait, for defendant.

OLNEY, J. The defence, which the pleader had in view, if true in fact, would bar the action. At the common law, a general denial would put in issue the legal effect of the con