
    Stebbins, Petitioner, versus Palmer.
    An action for the breach of a promise of marriage, where no special damage M alleged, does not survive against the administrator of the promisor.
    Julia Palmer, the respondent, brought an action for a breach of promise of marriage against Benjamin Stebbins, who died while the action was pending. Nearly two years after his death, she made application to the judge of probate, repre senting that no person had taken out letters of administration on his estate, that she was a creditor, and that at the time of his death she had an action pending against him, which had been continued from time to time, to enable her to summon in any person who should be appointed administrator ; and praying that letters of administration might be granted to such person as the judge should think proper. It was accordingly decreed that letters of administration should be granted. Marytta Stebbins, the widow of Benjamin, having omitted to appeal from this decree in the ordinary way, now petitioned the Court for leave to enter an appeal, pursuant to St. 1817, c. 190, § 8, alleging that her omission arose from mistake. And whether justice required a revision of the decree, depended on the question, whether the respondent was interested as a creditor in the estate of the deceased.
    The cause was argued in writing.
    
      E. H. Mills and Lathrop, for the respondent,
    contended that her action against Benjamin Stebbins survived. It is founded upon a contract between the parties, and to sustain it the promise must be proved according to the rules applicable to contracts. The form of the action is assumpsit, and the plea, non assumpsit. No case of modern date, it is believed, can be found, in which these circumstances were combined, where it has been decided that the action does not survive.
    It was anciently, indeed, held in one case, (Slade v. Morley, Yelv. 21,) that for a debt due on simple contract by the testator, no assumpsit lies against his executor. It was, however, solemnly decided in Norwood v. Read, Plowd. 181, and in 
      Pinchon's case, 9 Co. 86 b, and 2 Brownl. 137, that assumpsit well lies in such a case. Metcalf's Yelv. 21, in notis; Le Mason v. Dixon, W. Jones, 173; Hyde v. Dean, &c. of Windsr, Cro. Eliz. 552; F. N. B. 145; Hambly v. Trott, Cowp. 371; Lane v. Wheatly, 1 Saund. 216, note 1. And the principle has very properly been extended to contracts of all descriptions, whether for the payment of money, the performance of duty, or for any collateral undertaking. Carter v. Fossett, Palm. 329; Christopher v. Howe, Sty. 158; Bac. Abr. Executors, &c. P. 2, where are cited Cro. Jac. 405, 417, 571, 662, Rol. Rep. 266, and other authorities.
    This subject is ably discussed, and most of the authorities collected, by Serjeant Williams, in the note to Saunders before cited. It is there said, that where the cause of action was founded upon any malfeasance or misfeasance, was a tort, or arose ex delicto, such as trespass for taking goods, trover, false imprisonment, assault and battery, slander, &c., where the dec laration imports a tort done either to the person or property of another, and the plea must be not-guilty, the rule was actio personalis moritur citm persona; and that this rule still holds with respect to the person by whom the injury is committed ; for if he dies, no action of this kind can be brought had against his executor, though in some cases a remedy may be against the executor in another form. Kinsey v. Heyward, 1 Ld. Raym. 733; Cowp. 375. But that this rule was nevei extended to such personal actions as were founded upon any obligation, contract, debt, covenant, or any other duty to be performed, for there the action survived. Mason v. Dixon, Latch, 168
    With respect to the form of the action, where the testator might have waged his law, or where the declaration must be' guare vi et armis et contra pacem, or the plea must be that the testator was not guilty, the action will not survive. Cowp. 375.
    Whether, therefore, regard be had to the cause of action or to the form of it, the case at bar is clearly within the principles deducible from the foregoing cases.
    If it be said that this is a matter sounding in damages, it may be answered, that objection would lie in all cases of as
      
      eumpsit. That the damages are unliquidated and uncertain may be objected with equal force in a great variety of cases, such as quantum meruit, quantum valebant, collateral promises to indemnify, or to perform certain acts, promises for the faithful performance of the duties of an office, trust, trade or profession, &c. That it is not a pecuniary contract might also be urged in many cases where no doubt exists of survivor-ship ; as in the instances just mentioned of care, diligence and skill in a trade or profession. So, too, in the case of covenants of a master to instruct an apprentice.
    The few cases which seem at first most favorable for the petitioner, will, upon examination, be found clearly distinguishable from the case at bar.
    The decision in Ex parte Charles, 14 East, 197, that a woman to whom a promise of marriage had been made could not, on that account, be a petitioning creditor, or sue out a commission of bankruptcy, was founded upon the particular provisions of the bankrupt laws, which require that the debt shall be of a certain amount. And in that case the act of bankruptcy was committed before the damages were assessed.
    In Chamberlain v. Williamson, 2 M. & S. 408, it was decided, that an administrator could not maintain an action for a breach of such a promise, “on the ground that the allegation imports only a personal injury, to which the administrator is not by law privy, nor is he in fact privy.” The whole reasoning of the Court applies to the case of the decease of the party who received the injury,—that there is no injury to her personal property, for which the administrator can recover damages, and that the recompense for a personal injury would go to others, and not to the party injured. In the present case the plaintiff complains of a breach of promise to her personally. The party injured will receive the recompense, and she seeks her remedy in the same manner, and from the same source, as if the defendant were still living, to wit, from his estate. In that case, too, it did not appear that the defendant had refused to marry the deceased, or had married another ; and the action was not commenced till after the death of the promisee.
    
      The case of Kingdon v. Nottle, 1 M. & S. 355, was an action on a covenant of seisin made to the testator, which was broken during his life. It was held that the action did not lie for the executrix, u for that the covenant runs with the land and descends to the heir.” If the action had been by the covenantee against the executor of the covenantor, it can hardly be doubted that the action would have lain.
    The rights which a woman acquires by marriage of being supported, and, in case she outlives her husband, of enjoying a part of his estate, are valuable endowments, which, by the non-performance of the defendant’s promise, have been lost to the plaintiff; and it would be adding insult to injury, to say that the death of the promisor had deprived her of the only recompense the law could allow, — a recompense in money,— when this recompense must come out of the same estate, whether the defendant died pending the suit, or lived to see it terminated.
    That there are cases where the maxim, actio personalis, &c applies, cannot now be contested ; but it is a rule, arbitrary in its commencement, supported only by artificial reasoning, and often most unjust in its consequences. The Court certainly will not feel disposed to extend it to cases not clearly coming within its application.
    Indeed, there is no reason which ought now to operate, why one who receives a wound which disables him for life from pursuing his daily employment, or whose property has been wantonly destroyed, should be deprived of redress merely by the death of the party who inflicted the injury or committed the trespass. In Dr. & Stud. Dial. 2, c. 10, it is said that the executor is bound in conscience to make amends for a trespass committed by his testator, if the testator left property sufficient for that purpose, although the law would not compel him to do it.
    That the operation of this maxim ought not to be extended, is evident from the repeated efforts which have been made, both in the legislative and judicial departments, to restrict its application. The St. 4 Edw. 3, c. 7, and the judicial construction given to it, have extended redress, in an important class of cases, which before expired at the death of the party
    
      In a variety of cases, in order to extend the remedy against the representatives of a party deceased, the form of the action has besn changed, so as to eváde the application of strict technical rules.
    
      Davis, (Solicitor-General,) for the petitioner,
    contended, that this cause of action was altogether personal, and that the action died with the person. The maxim, actio personalis, &c., applies to all personal wrongs, whether they arise ex contractu or ex delicto; because the administrator represents the personal estate, or, in the language of our St. 1817, c. 190, § 14, “ the goods and estate,” and not the personal wrongs of the intestate, except where such wrongs affect the personal estate. 2 M. & S. 415; Cowp. 372. Where the damages are merely vindictive, and uncertain, no action lies against the administrator ; but where property is to be recovered, an action lies. “ In every case where my price or value is set upon the thing, in which the offence is committed, the executor shall be chargeable ; but where the action is for damages only, in satisfaction of the injury done, there he shall not be liable.” Per Manwood J. in Sheringlon's case, Sav. 40; Cowp. 376.
    A fundamental distinction is, that if it is a sort of injury by which the offender acquires no gain to himself at the expense of the sufferer, as beating or imprisoning a man, &c., the person injured has only a reparation for the delictum ; but where, besides the offence, property is acquired which benefits the testator, an action for the value of the property shall survive. Cowp. 376.
    In every case where the testator is bound by covenant, the executor shall be bound by it, if it be not determined by the death. But if it be to be performed by the person of the testator, the executor cannot perform it. Bac. Abr. Executors, fyc., P. 1, in notis. The taking an executorship does not embark the executor in the personal trusts of the deceased, noi is he obliged to answer for his several injuries ; for no one can tell how they may have been discharged or answered by the testator himself. Ibid. P. 2.
    The following cases have been decided upon principles analogous to those on which we rely. An administrate! was held not to be entitled to a scire facias upon a judgment in dower, where the intestate died before damages were ascertained by writ of inquiry of damages, because it was in the nature of a personal action, which dies with the person. Mordant v. Thorold, 1 Salk. 252; S. C. Carth. 133. No action of account lay at common law against an administrator, because the account rested in the knowledge of the intestate only ; nor an action for debt on simple contract, because the intestate might wage his law. That is, in both cases, the action was not maintainable, because of the personal rights of the intes tote, to which the administrator could not be either party or privy. Wheatly v. Lane, 1 Saund. 216, note 1.
    Whether the action survives does not depend upon the form or name of the action, nor upon whether it is founded upon contract, but upon whether there has been an injury to the personal estate; for in Kingdon v. Nottle, the action was covenant, but it was not sustained, because there had been no injury to the estate. But in Lucy v. Levington, 2 Lev. 26; S. C. 1 Ventr. 176, covenant was sustained, because there was a damage to the estate.
    From the nature of the marriage contract, the respondent’s action cannot survive. Marriage is described by Parsons C. J. as a civil contract between two single persons, founded in the social nature of man, and intended to regulate, chasten and re fine the intercourse between the sexes ; and to multiply, pre. serve and improve the species. Milford v. Worcester, 7 Mass. Rep. 52. This contract, in all'its consequences and relations, both as they respect the duties and benefits which result from it, is merely personal to both parties.
    In Chamberlain v. Williamson, 2 M. & S. 408, it is decided, for unanswerable reasons, that such an action does not survive to the administrator of the promisee. It will be found, that most of the reasons for that decision are equally favorable to the position, that it does not survive against the adminis trator of the promisor. The respondent’s action is founded upon alleged mutual promises, and o there cannot be a greater legal absurdity than that, in such a case, the promise should be allowed to survive to one party, and not to the other.
    It may further be remarked, that, from the nature of the damages demanded, the respondent can never recover. They are uncertain, and incapable of calculation. Per Lord Ellenborough, 1 M. & S. 364. Though given as a compensation, they are almost always considered somewhat in panam. Per Le Blanc J., 2 M. & S. 414.
    The right to recover damages for a breach of contract of marriage is not a debt; Ex parte Charles, 14 East, 198; and the respondent cannot be considered as a creditor of the intestate’s estate.
    It seems to be a strange position, that there is now no reason why a person, who has been disabled by a wound, should not be entitled to a compensation, merely because the person who caused the injury is deceased. What there is in the condition of society at present, more than there was formerly, to show that the maxim, actio personalis, &c., ought to be repudiated, one is at a loss to perceive. If there be any thing, however, the change in the law can be effected only by legislative interference.
    
      Bliss, on the same side, remarked, that according to the English law, in case the respondent had died, her claim would "not have been in any sense bona notabilia, so as to oust the ordinary of his jurisdiction. A conveyance by the defendant to defeat her action would not have been fraudulent and void. Lewkner v. Freeman, Free. Ch. 105; S. C. 1 Eq. Cas. Abr. 149. As to the action’s surviving, the Court will look rather to the substance than the form of the action. If an action of tort grow out of a contract, it takes the nature of an action of contract, and so vice versa. Buddle v. Willson, 6 D. & E. 369; Powell v. Layton, 5 B. & P. 365. Damages in this case are given as compensation merely for a personal wrong. According to the modern doctrine, assumpsit will lie upon an implied promise against a physician, surgeon, apothecary, attorney or counsellor for unskilfulness or neglect; could an action of assumpsit be sustained against the representative, where an injury was suffered in the health, or life or liberty ?
    
      
       See also Walker v. Barnes, 5 Taunt. 779.
    
   The opinion of the Court was delivered at May term 1823, at Springfield, by

Wilde J.

[After stating the grounds on which the Court thought it reasonable that the petitioner should be permitted to enter her appeal, in conformity with St. 1817, c. 190, § 8, if she could show that justice required a revision of the decree, he proceeded :]

This she attempts by referring us to the grounds on which the decree is founded, which, her counsel have argued, are insufficient in law to sustain it. They contend, that no one interested in the estate is desirous that administration should be granted, and that there is no necessity for incurring such an expense. If this has been made to appear, the decree ought to be reversed.

Generally, administration ought not to be granted, except on the application of some one entitled to administration, or who is interested in the estate to be administered upon. The question then is, whether the respondent is interested in, or has any claim upon, the estate of the deceased. At the time of his decease she had an action against him pending in this Court, founded on the breach of a promise of marriage ; and if this action by law survives, there is good ground for granting letters of administration, whether strictly speaking she is a creditor or not; for in such case justice would require that administration should be granted, so that the action might be prosecuted to final judgment. The principal question, therefore, is, whether such an action by law survives.

The maxim, actio personalis moritur cum persona, decides nothing, for it is admitted that it is not applicable generally to contracts ; and, although it commonly does apply, where the cause of action is a tort, or arises ex delicto, yet in many such cases the tort may be waived, and in an action founded on the principles of civil obligation damages may be recovered for a trespass. Where there is a duty, as well as a wrong, an action will survive against the executor. He is responsible for the debts of the deceased, and for all undertakings and acts that create a debt, as far as there are assets. And it seems to make no difference, whether the debt be certain or uncertain, or whether it arises from a promise express or implied. If the cause of action has been beneficial to the testator, the executor shall be charged. “ Where,” says Lord Mansfield, “besides the crime, property is acquired which benefits the testator, there an action for the value of the property shall survive against the executor ; but if it is a sort of injury by which the offender acquires no gain to himself at the expense of the sufferer, the person injured has only a reparation for the delictum in damages to be assessed by a jury.” Cowp. 376. The distinctioti seems to be between causes of action which affect the estate, and those which affect the person only : the former survive for or against the executor, and the latter die with the person.

According to this distinction, an action for the breach of a promise of márriage would not survive ; for it is a contract merely personal; at least it does not necessarily affect property. The principal ground of damages is disappointed hope ; the injury complained of is violated faith, more resembling in substance deceit and fraud, than a mere common breach of promise. The damages may be, and frequently are, vindictive ; and, if they could be proved against the executor, might render the estate insolvent, to the loss and injury of creditors.

For these and other reasons, it has been settled, in England, that such an action does not survive for an executor. If this was rightly settled, it is decisive, for the law. is unquestionably the same, whichever party may die.

The case of Chamberlain v. Williamson was considered as an action of the first impression ; which shows at least what the law was supposed to be before. This is a consideration o, no small weight, which, joined to the principles and reasoning of that case, is entirely convincing.

The respondent has laid no special damages in her declaratian, and has not averred in her application to the judge of probate that she has sustained any ; if she has any proof to support such an averment, she may apply anew to the judge of probate, and, if administration should be granted, may commence a new action. Whether, in such an action for special damages, she would be allowed to recover full damages, or would be restricted to those which relate to property, we do not now determine.

Decree of judge of probate reversed. 
      
       See Little v. Conant, 2 Pick. 527; Holmes v. Moore, 5 Pick. 257; Stimpson v. Sprague, 6 Greenl. 470.
     