If one of several joint obligors dies, the law, following the analogy of survivorship in joint estates in land, has held from an early day and still holds that the whole duty devolves upon the surviving obligors.97 If all the joint obligors die the obli-

94 Griffith on Joint Rights and Liabilities, page 34; W. D. Reeves Lumber Co. v. Davis, 124 Ark. 143, 187 S. W. 171.

95 See infra, Sec. 433.

96 In Lee v. Sankey, L. R. 15 Eq. 204, the defendants, a firm of solicitors, had been entrusted, with a sum of money to bold pending final instructions from two trustees. No investment was made but the defendants at various times repaid the money to one of the trustees supposing him authorised to act on behalf of both. He was not so authorized, and the defendants were held liable, Bacon, V. C, Baying (at p. 210): "the money having been placed in the Defendants' hands by the two trustees, they can only be discharged of such moneys by the joint receipt or by the joint authority of the two persons who had so entrusted the Defendants." The court distinguishes the case of Charlton p. Durham, 4 Ch. App. 433, on the ground that there the persons jointly entitled were executors, and the receipt of one executor was sufficient. It is not intimated that the situation in Lee v. Sankey would have been otherwise if the money due from the defendants had been a debt instead of a trust, but it cannot be admitted that payment of a debt in good faith to one trustee is not a discharge of the right of two or more joint trustees. Bowes v. Seeger, 8 W. & S. 222.

97 Osborne v. Crosbern, 1 Sid. 238; Calder v. Rutherford, 3 B. ft B. 302; Richards v. Heather, 1 B. ft Ald. 29; gation rests upon the executor or administrator of the last survivor.98 To this, however, an exception must be stated if a contract is personal in its character and requires for its performance the action of all the obligors. The death of one will discharge all from liability.99

Survivorship also applies to joint obligees. If one of them die, the entire right vests in the survivors;1 and if all the obligors die, the right vests in the personal representatives of the last survivor.2 In the case of obligees also a contract may be so personal in its character as to preclude survivorship. Thus the contract of a theatrical agent to employ three persons for a performance, in which they were all to take part, could not be enforced by the survivors, if one should die. The rule of survivorship especially, as applied to joint obligors, frequently works injustice. Although the rule did not preclude a surviving obligor, or the estate of a surviving obligor, which had been compelled to pay the whole of the obligation, from obtaining contribution or indemnification from the estates of the deceased co-obligors,3 the creditor might be deprived of all redress if all obligors died who were pecuniarily responsible. In the United States, equity relieves this hardship by allowing the creditor a remedy against the estate of the deceased joint obligor.4 To this doctrine of equity is due the state-

Moon v. Rogers, 19 111. 347; Stevens v. Catlin, l52 111. 56, 37 N. E. 1023; Bibcock p. Farwell, 245 111. 14, 44, 91 N. E. 683, 137 Am. St. Rep. 284; Mcintosh v. Zaring, 150 Ind. 301, 49 N. E. 164; Foster v. Hooper, 2 Mass. 572; Lea v. Blodget, 214 Mass. 374; 102 N. E. 67; Yorks v. Peck, 14 Barb. 644; Chamberlain v. Dunlop, 126 N. Y. 45, 26 N. E. 966, 22 Am. St. Rep. 807; McLaughlin v. Head, 86 Oreg. 361, 168 Pac. 614; Hogan v. Sullivan, 79 Vt. 36, 64 Atl. 234.

98 Bulkley v. Wright, 2 Root, 10.

99 Thus a death of one member of the firm discharges a contract by the firm to employ a servant. See supra, Sec. 316; infra, Sec. 1911.

1 Jell v. Douglas, 4 B. & Ald. 374; Vandenhauvel v. Storrs, 3 Conn. 203;

Supreme Lodge, K. & L. of Honor v. Portingall, 167 111. 291, 47 N. E. 203, 59 Am. St. Rep. 296; Babcock v. Far-well, 245 111. 14, 44, 91 N. E. 683; Semper v. Coates, 93 Minn. 76, 100 N. W. 662; Amarillo Nat. Bank v. Harrell (Tex. Civ. App.), 159 S. W. 858.

2Rolls v. Yate, Yelv. 177; Anderson v. Martindale, 1 East, 497; Park v. Parker, 216 Mass. 405, 406, 103 N. E. 936; Stowells v. Drake, 3 Zab. (N. J. Eq.) 310. See Babcock p. Farwell 245 111. 14, 44, 91 N. E. 683, 137 Am. St. Rep. 284.

3 See infra, Sec.345.

4 See the following notes. The same result is sometimes attained by statute. McClaskey v. Barr, 79 Fed. 408 (Ohio); White v. Connecticut General Life merit often made, that joint obligations are treated in equity as joint and several. But this statement is inaccurate, for equity never charged the estate of the deceased joint obligor unless either because of fraud, ignorance, or mistake, the parties failed to create a joint and several liability when such was their intention; 5 or where the deceased joint obligor shared in the consideration or benefit for which the obligation was given.6 Where the deceased obligor is merely a surety, his death destroys all remedy of the obligee against his estate in equity as well as at law.7 And even where the deceased joint obligor shared in the consideration his estate cannot be held until it is shown that the creditor has no effective redress against the surviving obligor.8 In England unless the joint obligation is that of a partnership the creditor has no relief against the estate of a deceased joint obligor even though he was not a surety, and the claim cannot be collected from the survivor.9 By modern statutes it is sometimes broadly provided that all contracts which by the common law are joint shall be construed as joint and several.10