This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
At common law, the death of a joint promisor discharged his estate and left the survivors liable for the entire amount of the debt.1 The promisee could not join the administrator of the deceased joint promisor with the surviving joint promisors.2 In equity relief against the estate of the deceased promisor could be given if the survivors were insolvent.3 The survivor could have contribution from the estate of the deceased promisor.4 The result of the common-law rule that the death of the promisor discharged his estate proved to be so unjust that it has been altered by statute in many states. Under some of these statutes it is provided that the death of a joint promisor does not alter his liability and that it may be enforced against his estate.5 Under such statute, however, the survivor may be held for the entire debt.6 On the other hand, under such a statute the surviving promisor and the administrator of the deceased promisor may be joined at the election of the promisee.7 Some of the statutes as construed by the courts practically result in causing the death of a joint promisor to turn the contract into a joint and several contract.8 If the statute has the effect of turning a joint contract into a joint and several contract upon the death of a joint promisor, the surviving promisor may set up as a defense to an action against himself the pendency of an action against such joint promisor and the administrator of the deceased promisor in jurisdictions in which the pendency of a joint action upon a joint and several obligation is a defense to a subsequent several action against one of such promisors.9
13 Sully v. Campbell, 99 Tenn. 434, 43 L. R. A. 161, 42 S. W. 15.
14 Kamm v. Harker, 3 Or. 208; Providence County Savings Bank v. Vad-nais, 25 R. I. 295. 55 Atl. 754.
Contra, Whittenhall v. Korber, 12 Kan. 472.
1Ashby v. Ashby, 7 B. & C. 444; Burgoyne v. Trust Co., 5 O. S. 586; Murphey v. Weil, 92 Wis. 467, 66 X. W. 532.
2EggIeston v. Buck, 31 111. 254; Cochrane v. Cushing, 124 Mass. 219.
3 Illinois. Moore v. Rogers, 19 111. 347.
Massachusetts. New Haven, etc., Co. v. Hayden, 119 Mass. 361.
New York. Hamersley v. Lambert, 2 Johns. Ch. 508; Tope v. Cole, 55 N. Y. 124.
Ohio. Burgoyne v. Trust Co., 5 0. S. 586.
South Carolina. Ayer v. Wilson, 2 Mill (S. Car.) 319, 12 Am. Dec. 677.
4Erwin v. Dundas, 45 U. S. (4 How.) 58, 11 L. ed. 875.
5 New York. Potts v. Dounce, 173 N. Y. 335, 66 N. E. 4.
Ohio. Eckert v. Myers, 45 O. S. 525, 15 N. E. 862.
Tennessee. Taylor v. Taylor, 24 Tenn. (5 Humph.) 110.
Vermont. Hogan v. Sullivan, 79 Vt. 36, 64 Atl. 234.
Wyoming. Chadwick v. Hopkins, 4 Wyom. 379, 62 Am. St. Rep. 38, 34 Pac. 899.
6 Lee v. Blodgett, 214 Mass. 374, 102 N E. 67; Hogan v. Sullivan, 79 Vt. 36, 64 Atl. 234.
7 Burgoyne v. Trust Co., 5 O. S. 586; Weil v. Guerin, 42 0. S. 299.