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.
If the heirs or personal representatives of one of the parties to a contract which is personal in its character, treats such contract as in existence after the death of one of the parties thereto, they are bound by such contract.1 A contract by which A agreed to render personal services to B, in consideration of which B agreed to devise certain realty to A, is discharged by A's death, but if B accepts performance of such services from A's heirs, under such contract, and elects to treat the contract as in effect, A's heirs may have specific performance against B's heirs upon B's death.2 Whether the court regarded such conduct as continuing the original contract in effect, or whether it regarded the transaction as amounting to a new contract between the heirs of A, after A's death, and B, is not clear.3 Since the contract was fully performed by B's heirs, and they were in possession of the realty, the Statute of Frauds did not require a written contract; and for this reason it is not easy to determine from the opinion which view of the case the court took. If a contract to collect rents is discharged by the death of the principal, the recognition of such contract by the representatives of the deceased, so as to give it validity, is said to be "virtually the making of a new contract."4 The fact that the executor of a deceased principal permits an agent, who is employed to collect rents, to continue to collect such rents for a period of four months after the death of the principal, is said not to amount to a so-called ratification or adoption of such contract5
8 Nutting v. Watson, S4 Neb. 464, 25 L. R. A. (N.S.) 823, 121 N. W. 582.
1 Soper v. Galloway (Ia.), 105 N. W. 399.
2 Soper v. Calloway, (Ia.), 105 N. W. 399.
3 "It is a contention of defendants, made in argument, that the contract, if made, was purely personal in character, and for that reason terminated at once upon the death of the parents of plaintiffs. There is no merit in this contention. We need not determine what the rights of the parties would have been had Van Ausdol refused to accept a continuation of services at the hands of plaintiffs. He did accept of such service, and in view thereof, and of the relation of the parties, we think it must be said that within the understanding of each, such substituted performance was in compliance with the contract requirements, and to be followed by the same measure of rights which, had their death not intervened, would have accrued to the parents of plaintiffs. This conclusion has support in the following cases: Gray v. Murray, 3 Johns. Ch. 167; Francois v. Ocks, 2 E. D. Smith, 417; Long v. Hartwell, 34 N. J. Law, 124; Lawrence v. Dole, 11 Vt. 555; Dana v. Hancock, 30 Vt. 620; Serfass v. Dreisbach, 141 Pa. 142, 21 Atl. 523." Soper v. Galloway, (Ia.), 105 N. W. 399.
4 Homan v. Redick, 97 Neb. 299, L. R. A. 1915C, 601, 149 N. W. 782.