The English common law has never adopt ed these provisions, or gone into the refine ment of reasoning upon which they are bas ed. It requires the survivorship to be proved by facts, and not by any settled legal rule or prescribed presumption. In some of the cases that have arisen involving this bare question of survivorship, the court have ad vised a compromise, denying that there was any legal principle upon which it could be decided. In others, the decision has been that they all died together, and that none could transmit rights to others; 1 W. Bla. 640; Fearne, Posth. Works 38, 39; 2 Phill. 261; Cro. Eliz. 503; 3 Hagg. Eccl. 748; 5 B. & Ad. 91; 1 Y. & C. Ch. 121; Russell v. Hallet, 23 Kan. 276; Stinde v. Goodrich, 3 Redf. (N. Y.) 87 ; [1892] Prob. 142 ; Ash v. Hare, 73 Me. 403 ; that is, the one who bears the burden of proof of survivorship fails in his case; Newell v. Nichols, 75 N. Y. 78, 31 Am. Rep. 424 ; Russell v. Hallett, 23 Kan. 276. Where a mother and daughter die In the same year, but there is no evidence of the precise date of the death of the moth er, an assumption that she died before the daughter is not warranted ; Cook v. Cas well, 81 Tex. 678, 17 S. W. 385. Each case must be determined upon its own peculiar facts and circumstances, whenever the evi dence is sufficient to support a finding as to survivorship; Estate of Ehle, 73 Wis. 445, 41 N. W. 627.
As to contracts. These are, in general, not affected by the 'death of either party. The executors or administrators of the decedent are required to fulfil all his engagements, and may enforce all those in his favor. But to this rule there are the following excep tions, in which the contracts are terminated by the death of one of the parties:— The contract of marriage. See MARRIAGE. The contract of partnership. See PART NERSHIP.
Those contracts which are altogether per sonal: as, where the deceased has agreed to accompany the other party to the contract on a journey, or to serve another ; Pothiet, Obl. c. 7, art. 3, §§ 2, 3 ; Howe Sewing-Mach. Co. v. Rosensteel, 24 Fed. 583 ; Lacy v. Get man, 119 N. Y. 109, 23 N. E. 452, 6 L. R. A. 728, 16 Am. St. Rep. 806; or to instruct an apprentice; Bacon, Abr. Executor, P ; 1 Burn, EccL Law 82 ; Ans. Contr. 325; Shields v. Owens, 1 Rawle (Pa.) 61; also an instance of this species of contract in 2 B. & Ad. 303. In all those cases where one is acting for another and by his authority, such as agencies and powers of attorney, where the agency or power is not coupled with an interest, the death of the party or dinarily works a revocation ; Hunt v. Rous mauler, 8 Wheat. (U. S.) 174, 5 L. Ed. 589; Lehigh Coal & Nay. Co. v. Mohr, 83 Pa. 228, 24 Am. Rep. 161. Where the power is to transfer stock, signed by the seller of the stock, it is not revoked by his death; Fish er v. Coal Co., 31 W. N. C. (Pa.) 502. See PRINCIPAL AND AGENT.
The continued existence of both parties for the stipulated term is the basis of a con tract ; and on the death of a master no ac tion will lie against the administrator for re fusing to continue a contract of employment; Yerrington v. Greene, 7 R. I. 589, 84 Am. Dec. 578 ; Lacy v. Getman, 119 N. Y. 109; 23 N. E. 452, 6 L. R. A. 728, 16 Am. St. Rep. 806; L. R. 4 C. P. 744 ; Burdett v. Yale, 6 Allen (Mass.) 125; Harris v. Johnson, 98 Ga. 434, 25 S. E. 525; Babcock v. Goodrich, 3 How. Pr. N. S. (N. Y.) 52. But in Harrison
v. Conlan 10 Allen (Mass.) 85, the pastor of a an organist to play for three months for $50. The employer died and the organist did not play thereafter; though ready to do so. It was held in an action against the personal representatives of the pastor that the obligation to pay was not discharged by his death, but that the or ganist could recover only pro rata compenz sation for the portion of the three months during which he had played. Where a land owner hired another for a specified term to raise crops, the contract was held not to end with the employer's death, but to be binding on his personal representatives, if the em ployment was continued; thltugh most of the services were rendered after the employer's death, the employee was entitled to recover his compensation: Pugh v. Baker, 127 N. C. 2, 37 S. E. 82. In Mendenhall v. Davis, 52 Wash. 169, 100 Pac. 336, 21 L. R. A. (N; S.) 914, 17 Ann. Cas. 179, a buyer paid cash and notes for the implements and good will of the seller's dentistry business and for the seller's agreement to render for a specified time personal service in that business; the seller died before the expiration of the pe riod and the buyer was held to have a right to counterclaim against his liability on the notes the damages he had suffered by fail ure to receive the services.
As to torts. In general, when the tort feasor or the party injured dies, the cause of action dies with him ; but when the de ceased might have waived the tort and main tained assumpsit against the defendant, his personal representative may do the same thing. See Acno PERSONALIS MORITUR CUM PERSONA, where this subject is more fully ex; amined. As to the right of action for death by wrongful act, see As to crimes. When a person accused of crime dies before trial, no proceedings can be had against his representatives or WS estate.
As to inheritance. By the death of a per son seised of real estate or possessed of per sonal property, his property real and sonal, after satisfying his debts, vests, when he has made a will, as he has directed 'by' that instrument ; but if he dies intestate, his real estate goes to his heirs at law under. the statute of descents, and his personal .tor-his administrators, to be distributed to the next of kin, under the statute of distributions. In suits. At common law an original suit abated by reason of the death of the plain tiff ; 6 Wait, Act. & Def. 400 ; Torry v. Rob ertson, 24 Miss. 192 ; but in most of the states and England it is otherwise, and the personal representatives may become parties and prosecute the suit ; Wms. Ex., 7th Am. ed. pt. ii. b. iii. ch. 4, and American note thereto, pp. 91, 99. The English practice and rules under the procedure acts will be found In the chapter of Williams on Executors above cited and a reference to the American statutes in the note thereto. In case of the death of a plaintiff the usual practice is to make a suggestion of it to the court which Is entered of record ; and in case of the death of a defendant his executor or admin istrator may be made a party, either by spire facias, or motion for an order of re vivor, or other proceeding for giving due no tice to the representative, according to the varying practice of the several states. See ABATEMENT.