Page:Harvard Law Review Volume 32.djvu/474

438 HARVARD LAW REVIEW Schwartz, 47 Pa. 503. But with personalty, the court could not look beyond the will and no examination into the circumstances of the testator's property was permitted. Nannock v. Horton, 7 Ves. Jr. 391 ; Jones v. Tucker, 2 Mer. 533. Contra, White v. Hicks, 2,3 N. Y. 383. However, the Wills Act and similar legislation in this country reversed the common-law presiunption, and to- day a testamentary gift described generally operates as an exercise of a power unless the contrary intention is shown. 7 Wm. IV & i Vict., c. 26, § 27; I N. Y. Rev. Stat. 737, chap. 126, Ky. Gen. Stat. 1888, chap. 113, § 22. Some jurisdictions have reached the same result without the aid of a statute. Amory v. Meredith, 7 Allen (Mass.) 397; Emery v. Haven, 67 N. H. 503, 35 Atl. 940. Limited powers, however, remain unaffected by the statutes and as to them the common law still applies. Re Huddleston, [1894] 3 Ch. 595; Re Wilkinson, [1910] 2 Ch. 216; Re Glassington, [1906] 2 Ch. 305. The principal case is clearly within the provision of the Wills Act and presents solely the question whether there was a contrary intention expressed in the residuary clause sufficient to rebut the presumption that the bequest of the stock was meant as an execution of the p>ower. The court in deciding the question in the negative seems to have reached the correct result. Principal and Surety — Joint and Several Continuing Guarantee — Notice to Creditor of Death of Guarantor — Discharge of Guar- antor. — In consideration of C's agreeing or continuing to deal with P, the undersigned, G and five others, jointly and severally guaranteed payment of P's Uabilities to C, present and future, and agreed that it should be a con- tinuing guarantee until the undersigned or the executors or administrators of the undersigned should give notice not to make further advances. C was not bound to extend credit. G died and his executor gave notice purporting to terminate the liability of the estate under the guarantee. Subsequent to this further advances were made to P. Held, that the estate of G is Uable until each and aU of them, or their respective executors or administrators should give notice of termination. Egbert v. National Crown Bank, L. R., [1918] A. C. 903. A mere guarantee of advances, no present consideration being given, is but an offer for successive unilateral contracts which the death of the offeror ipso facto terminates. Aiken v. Lang's Adm'r, 106 Ky. 652, 51 S. W. 154; Hyland v. Habich, 150 Mass. 112, 22 N. E. 765. But where a contract has been made, death does not terminate it. Kernochen v. Murray, 11 1 N. Y. 306, 18 N. E. 868; Lloyds v. Harper, L. R. 16 Ch. D. 290. See 13 Harv. L. Rev. 216. Losing sight of this fundamental distinction seems to have led to confusion. Thus, mere guarantees have been called contracts termi- nable upon notice of death either by reading such a limitation into the con- tract or by holding the consideration divisible. Dodd v. Whalen, [1897] i Ir. 575; Ascherson v. Tredegar Dry Dock and Wharf Co., [1909] 2 Ch. 401; Valentine v. Donohoe-Kelly Banking Co., 133 Cal. 191, 65 Pac. 381. Where the guarantee is under seal, as an offer is merely intended, the seal, in this country, will not prevent its termination by the death of the guarantor. Jordan v. Dobbins, 122 Mass. 168. But some courts will require notice to the creditor. Gay v. Ward, 67 Conn. 147, 34 Atl. 1025; National Eagle Bank v. Hunt, 16 R. I. 148, 13 Atl. 115. Where, however, there is a binding contract for a definite time the only possible remedy would seem to be on equitable grounds; equity will prevent a forfeiture, unnecessary damages must be avoided. See 30 Harv. L. Rev. 494. In the principal case a contract was apparently intended, but the consideration being illusory a mere offer re- sulted, which was ipso facto terminated by the guarantor's death. But as- suming a valid contract, the doctrine of Dodd v. Whalen is inapphcable, as here notice by the guarantors or their executors is provided for. Accord-