Fishel v. Fishel

The opinion of the Court was delivered by Gibson, C. J. As the effect of the will is to preserve; and not to create a responsibility under the covenant, an action for the articles to be furnished cannot be maintained as for a legacy, and consequently not to charge the defendants in a representative capacity. The testator had power to release the covenant.; and, butforhis testamentary reservation of it., his appointment of the covenantor to the executorship, would have released it in equity and at law. An action is maintainable on a covenant or an obligation, not, as on a parol promise, by the party to be benefited, but by the party to the deed, who may also release it.; and the suspension of the right of action by concurrence of the character of plaintiff and defendant., induced by the creditor and not, by the law, is a legal extinction of if. For either of these reasons an action on the covenant would be impracticable here. But, a covenant thus extinguished at law, subsists in equity for the benefit of creditors; and also, where the testator so wills it, for the benefit of residuary legatees and the next of kin. In behalf of the latter, preservation of the cause of action is matter of intention: in behalf of the former, it is matter of right, and paramount to intention. As a party is presumed to know the consequences of his acts, thetestamentary destruction of aremedy is ordinarily considered to be a gift, of the duty; but as equity suffers not a debtor to elude his creditors by a gift of his property, an executor nrfay not screen himself by a voluntary release from accounting to them for it. And as a testator has an arbitrary control over the direction of his bounty, he may expressly or implicitly preclude the inference of a gift, even where creditors are not to be affected. Now the legitimate office of this will is to preclude such an inference, by the clause which directs that the widow enjoy the rights and privileges previously reserved for her; and-equity will enforce it. But how? By bill and decree when operating by its ordinary and legitimate process ; and by action and judgment when restricted to the process of the common law': in either way, however, not, against the executors, who are irresponsible, as sueh, but against the parly originally bound. The joinder of another in a bill would be matter of pleading or cause of demurrer, and an action, as a means lo the same end, must be betwixt the same parties. To prevent a failure of justice, we have sustained an action ■in similar cases; and as an instrument of equity, assumpsit on a supposititious promise to perform the covenant or render the duty, is not only as effective, but as congruous as any other that could be employed. That form of action has been selected here, but used against a person not burthened with the covenant; and for that reason the direction to find against the plaintiff was entirely proper. There [48] was no legacy, pecuniary or specific, to create a joint liability; and there could be no question of ademption. The action is against the defendants, not in a representative character, but to enforce the covenant of one of them; and the direction was, in all minor respects* substantially right. Judgment affirmed.