#### Thomas Dunham *vs.*Charles J. Elford and James B. Sherman, Executors.

*Executor*— Assent *to pecuniary legacy amounts to*contract— *Constitutional law*— Stay *Law.*

After assent by an executor to a pecuniary legacy there is a contract, express or implied, to pay it, and though no action at law may lie on such contract, it is, nevertheless, within the protection of the constitutional provision that “no State shall pass any law impairing the obligation of contracts.”

BEFORE JOHNSON, OH., AT GREENVILLE, JULY, 1866.

The decree of his Honor, the Circuit Chancellor, is as follows :

Johnson, Ch. Many years ago, Benajah Dunham, after haying duly executed his last will and testament, departed this life, leaving the same unrevoked and of full force, in which he appointed the defendants the executors of the same; and soon after his death they had the same proved, and qualified as the executors thereof. In his will he gave to the complainant, who was his brother, the annual interest on the sum of three thousand dollars, for and during the term of his life; and the sum of three thousand dollars to his children, after his death. The executors have paid up, in full, many of the legacies, and, until some time in 1860 or 1861, they regularly paid the annuity of two hundred and ten dollars to the complainant. ■

On the thirtieth day of May, 1866, the complainant filed his bill for the recovery of the interest due him under the bequest in said will, to which the defendants, in their answer, interposed various objections; one of which is, that the complainant was prohibited from filing and prosecuting his bill for the collection of money, by the Act of the Gen*191eral Assembly, passed on tbe twenty-first day of December, 1861, and continued from year to year, up to tbe time of filing tbe bill, and commonly known as tbe “ Stay Law.” Does tbe decision of tbe case of *The Slate*vs. *Oarew*apply to this? If tbe complainant’s right to recover is founded upon a contract with tbe defendants, either express or implied, it clearly does; but if not, it has no application to this case. “ An executor, is not liable, at law, to tbe payment of a pecuniary legacy, (5 T. R. 690,) but if he, in respect of a new and sufficient consideration, as forbearance, &c., expressly promise to pay tbe legacy, and such promise be reduced to writing, so as to bring it within tbe fourth section of tbe Statute of Frauds, both tbe consideration of it and tbe payment of it may be enforced by action. Pea. Ev. 73.” 2 Saunders on P. & E.' 505; and 2 Williams on Ex. 1186. There is no allegation in the pleadings of any promise by tbe defendants to pay tbe complainant tbe amount be claims, upon any new consideration, moving thereto. And tbe scope and tenor of tbe bill is not to enforce a contract, but the payment of a pecuniary legacy. And as to this case, it is tbe opinion of tbe Court, that tbe “ Stay-Law” is not unconstitutional, and that it is subject to its provisions. It is, therefore, ordered and decreed that the bill be dismissed.

The complainant appealed, and now moved this Court to reverse tbe decree, on tbe grounds:

1. His Honor, the Chancellor, erred in deciding that there was no contract, express or implied, on tbe part of the defendants, to pay tbe complainant bis annuity under tbe will of tbe testator.

2. When tbe defendants qualified as executors, and were sworn to execute tbe will, they undertook to pay tbe legacies.

*1928. The defendants having paid the annuity for eight or ten years, thereby assented to the legacy due the complainant.

4. His Honor erred in deciding that the complainant could not maintain his suit for the continuance of his annuity, and that the decision of *The State*vs. *Carew*did not apply to his suit.

*Perry,*for appellant.

Trusts are contracts, and that no action at'law lies, is not the test. *Dartmouth Oollege Case,*4 Cur. 527. After consent to a legacy, action at law lies, and here there was consent. The payment of interest was consent. The law implies a contract where there is an obligation to pay. Every one who undertakes an office or duty, impliedly undertakes to perform it. The claim is for breach of trust, and that ranks as a simple contract. *Atkins*vs. *Hill,*Cowp. 284; *Hawkins*vs. *Sanders,*Cowp. 289 ; 2 Bl. Com. 483 ; Chit, on Con. 17, 27, 207.; 1 Story Eq. 506; Smith on Con. 96; 1 Mad. Ch. 178; 4 Wheat. 518 ; 1 Kent Com. 417.

*Elford,*contra.

The Constitution applies to technical contracts, and not to mere trusts such as this is.

The opinion of the Court was delivered by

Inglis, A. J.

An executor, by qualifying, taking possession of the assets, and *assenting*to a pecuniary legacy, may well be regarded as having expressly undertaken to the legatee to pay it, or, at the least, to have acknowledged a liability from which a promise will be implied. In *Hawkes*vs. *Sanders,*Cowp. 289, which was an action *at law*to recover a pecuniary legacy, after assent, the declaration *193alleged an express promise to pay, but it is to be inferred, from a remark of one of tbe Judges, that the express promise was no more than tbe executor’s express assent to tbe legacy. In *Atkins*vs. *Hill,*Cowp. 284, an express promise was alleged, and tbe demurrer admitted it. Tbe recovery in both of these cases was rested upon tbe alleged promise. But Lord Mansfield distinctly and without qualification affirms tbe proposition that, after assent, an action at law will lie for tbe recovery of a pecuniary legacy. In our own case of - vs. *Ferguson's Executors,*1 Bay, 112, Judge Bay, in bis abstract of tbe case, seems to have assumed, that tbe amount of a pecuniary legacy, after assent, might be recovered as money bad and received in tbe executor’s bands for tbe legatee’s use. It is said (in note 6 to sec. 592, 1 Story’s Eq.) that “ an action *at law*for a pecuniary legacy has been maintained against an executor after assent in some of tbe Courts of America.” But tbe proposition is not there supported by a reference to any decided case. Mr. Cbitty, in bis Treatise on Contracts, at page 678, says: “Where money is due in equity, and tbe trustee states an account concerning it, with tbe *cestui que trust,*it may be recovered at law in tbe action for money bad and received, or in an action on an account stated.” It is not very clear why an assent to a pecuniary legacy of definite amount should not have tbe same effect as stating an account.

But in *Deeks*vs. *Strutt,*5 Term Bep. 690, which was an action at law for the recovery of tbe arrears of an annuity bequeathed, when tbe annuity bad been regularly paid for several years, and then suffered to fall in arrear, and was therefore an exact parallel of tbe present case, except as to tbe forum, it was adjudged that such an action would not lie. This case seems to have finally settled tbe law on the point in England, and there is no direct decision to tbe contrary reported in our own books.

It is to be observed, however, that, in *Deeks*vs. *Strutt,**194Lord Kenyon does not intimate the absence of a contract as a ground upon which the jurisdiction of the Law Court is denied, but rests that denial on the inconvenience that would result from such jurisdiction compared with the superior facilities in the peculiar modes of proceeding and relief in equity for protecting the rights and interests of all parties; his illustration being the case of a legacy to a married woman, which the Equity Court can and the Law Court cannot secure in whole or in part to her own use, &c. It appears to follow from all this, that there is, after assent, a contract or promise, express or implied, upon sufficient consideration, to pay the legacy to the legatee — but that, like some other classes of contracts, owing to special circumstances and considerations, it can only be enforced in equity.

This contract, in the present case, was long prior in date to the passage of the Stay Law, and is, therefore, within the constitutional protection asserted in *The State*vs. *Carew,*13 Rich. 498.

It is ordered that the circuit decree dismissing the bill be reversed, and that the cause be set down for a hearing in the Circuit Court upon the pleadings and proofs.

Dunkin, Ch. J., and Wardlaw, A. J., concurred.

*Decree reversed.*