Jenkins v. De Groot , 1 Cai. Cas. 122 ( 1804 )

Per curiam delivered by Thompson, J.

The facts stated in the bill, are admitted by the demurrer to be true. The only question, therefore, presented to the court, is, whether, where three persons make a promissory note, one dies intestate, but solvent, and the two survivors become insolvent, the estate of the deceased can in equity be charged with the payment of the note ? I have not been able to discover any principles of justice on which it can be exonerated. It is a rule applicable to proceedings in courts of law, that where two are jointly bound, and one dies, the survivor must be prosecuted, and an action cannot be maintained against the representative's of the deceased. This, however, is a rule controling the remedy, and not determining the right. Courts of equity daily give relief where the remedy at law is extinguished. The three makers of this note, as to this transaction, are considered in the light of partners, and the consideration received by them was for the mutual benefit of them all 5 and although this consideration, whatever it might be, may survive, unless severed during the life-time of the intestate, yet the survivors are considered, in equity, as the trustees for the representatives of the deceased, for his proportion. Rights claimed by, and injuries arising from, survivorship, are not viewed in a very favourable aspect, either at law or in equity. I have looked into the cases referred to by the appellants’ counsel, which I think fully establish and warrant both the right and practice of courts of equity, giving relief in cases of this description. The survivors are insolvent. The deceased left assets sufficient to pay this and all other just demands against his estate. The appellants are without remedy at law, and I see no reason why equity should not give relief. I am, therefore, of opinion, that the decree of his Honour the Chancellor ought to be reversed.