Page:Federal Reporter, 1st Series, Volume 10.djvu/242

 230 FEDERAL EBPOETER. �at law, and for their exclusive benefit ; since in making a contract for the payment of money to "devisees" the decedent clearly excluded the other classes for whose benefit alone he could have contracted according to the articles of incorporation. Since, then, the adminis- trator must, if he collects the money at all, proceed upon the ground that it is assets of the estate, it is clear that the creditors must be first satisfied — a resuit manifestly inadmissible. No one, surely, will seriously contend that the creditors of the decedent are entitled to payment ont of the fund in question. �Why the decedent did not by will appoint some beneficiary, some devisee, to receive his bounty under the contract in question we know not. He was himself a Mason, and a member of the benevolent association represented by the defendant corporation. He may, in making the contract, have had in contemplation some individual whom he purposed to make the object of his bounty, and he may have changed his mind with respect to the object of his intended bounty. He may have made up his mind that his associates should not be called upon to contribute the sums required to fulfil the contract •which he had entered into with the corporation. At all events, he died without appointing by will any one to receive the money, and the only presumption we can indulge in is that he intended not to do what he omitted to perform. Can we presume without proof thathe failed to appoint devisees, as contemplated by the contract, in conse- quence of carelessness or inadvertence ? Is negligence to be pre- sumed? �If B. stipulates with A., upon a consideration flowing from A., to pay money to G., howmust A., suingB. upon the contract, assign the breach ? Must he not allege the non-payment to C. as the breach of the contract ? Would it not be a fatal variance to assign the non- payment to A. as the breach of the contract ? And, A. dying, must not his administrator, suing at law to enforoe the contract, allege the breach to be a non-payment of the money to C. ? The contract pro- viding that the money be paid to C, the administrator would certainly fail on the ground of variance if he assigned as a breach of the con- tract non-payment to any party other than C. So, in the present case, the administrator must assign his breach tp be the non-payrnent to the decedent's devisees, as required by the contract. �To meet this difSoulty the complainant's counsel suggested in the oral argument the analogy between a note payable to the order of the payee and the present case. Suppose the payee should die without making any order appointing the party to whom payment should be ��� �