On Petition for Rehearing.
Mr. Justice Burnettdelivered the opinion of the court.
In an opinion by Mr. Justice Moore reported in 127 Pac. 793, we affirmed a decision by the circuit court in favor of the plaintiff. In an able petition for a rehearing the counsel for the defendant discussed two questions: First, the rights of the heirs to maintain this suit; and, second, whether or not there was sufficient delivery of the personal property in question as a gift to establish title in the defendant Jones. It is proposed to treat these in their inverse order.
12. Considering the transaction in the light of the law about donatio causa mortis in addition to what has already been said by this court on that subject as reported in the opinion referred to, it is proper to note the plead*86ings of the defendants Young and Jones in that respect. They allege:
“That Samuel E. Hillman, deceased, came to the residence of the defendant W. Franklin Jones about February 12, 1909, for the purpose of making it his permanent home during the remainder of his natural life, and the said Samuel E. Hillman, being desirous that the defendant W. Franklin Jones should receive any portion of his estate which should remain after his death, duly assigned and transferred to the defendant J. P. Young as trustee the promissory notes mentioned in the complaint, and also duly assigned and transferred in writing a mortgage securing the same to the said J. P. Young and instructed the said J. P. Young to collect the proceeds thereof so far as the same should belong to the said Samuel E. Hill-man, and pay them over to the said W. Franklin Jones as they should be needed, and at the death of the said Samuel E. Hillman, if any portion thereof remained in the hands of said J. P. Young, trustee, he should deliver the same to W. Franklin Jones, except such sum as should be necessary to pay him a reasonable compensation for his services as such trustee.”
This allegation falls short of pleading a donatio causa mortis, because it does not say that it was made in contemplation of the death of the donor, neither does it aver delivery of the property to the defendant Jones or to any one for him. On its face this portion of the answer makes the ultimate interest of the defendant Jones merely conditional because he is only to- receive what may be left of the proceeds of the property after Mr. Young had managed and disposed of it according to the directions of the donor and had paid himself a reasonable compensation for his services.
13. Further answering the argument for a donatio causa mortis, although in our judgment the averment does not support such a gift, it is manifest upon the face of this pleading that Young was to act as the agent and according to the instructions of Hillman, and not according to the directions, or for the interests, of Jones, except *87incidentally. These features fairly distinguish this case from that of Deneff v. Helms,. 42 Or. 161 (70 Pac. 390). In that case the donor was dangerously afflicted in his last illness. He had $2,000 on deposit in a bank and $200 in the possession of an individual. His private depositary and an officer of the bank were at his bedside, and he there indorsed to the defendant Helms his certificate of deposit in the bank, and directed its officer to pay the fund to the defendant. He gave the same directions to his individual bailee. On the same day these directions were carried into effect, and the defendant reduced both sums of money to his own possession. The donor died the following day. He had revoked all previous agencies employed in the custody of his money, and expressly directed the same to be paid at once to the donee. In the present case the former agency of Young was continued with directions to manage the property in his possession as before, and expend possibly all of it during the lifetime of the donor on condition that, if anything remained, he was to pay it to the defendant Jones. The transaction was simply a perpetuation of the former relationship between Young and Hillman, and, of course, as an agency terminated at the death of the latter. Nothing remains to be said on the subject of donatio causa mortis, the law of which is so clearly pointed out in the opinion of Mr. Justice Moore.
14. The defendants endeavor to reach the same result of conferring title upon Jones by pleading a contract made by him with the decedent after the latter had come to live with Jones, whereby the latter was to take care of Hillman during his life, in consideration of which Hill-man was to convey the property to Young for management substantially as before stated. It will be noted, however, in this connection, as found by the court, that Young by virtue of his authority as agent had previous to this time made a contract with Jones for the perform*88anee of substantially the same service mentioned in the defendant’s answer, but without any condition making Jones the residuary beneficiary, and that this contract was unknown to Hillman. Having agreed to do the very things which he promised in the contract alleged, the renewed stipulation of Jones to perform the identical services would not constitute any consideration sufficient to support the agreement averred which in turn would not operate to transfer any property from Hillman to Jones. Concerning the indorsement of the notes to Young, it is sufficient to say that equity, regarding the substance rather than the mere form, will hold that the effect of the indorsement was not to pass the absolute title to the property to Young, but simply to. lodge it in his hands as the custodian of the same for the benefit of Hillman. It follows that to all intents and purposes, at least from an equitable standpoint, the notes and mortgage in question belonged to Hillman at the time of his death as before and were properly an asset of his estate. It is plain that when the owner of property sui juris parts with the title, whether in contemplation of death or otherwise, neither his personal representatives nor his heirs can recover the same, for they stand in no better position than the donor himself occupied before his demise. An exception to this rule is found in the procedure authorized by Sections 1279 and 1280, L. O. L., in which, when so directed by the county court in a proper case, an administrator or executor may sue to set aside a conveyance made by the decedent in his lifetime with intent to defraud creditors. The discussion of this exception in the former opinion did not and was not intended to exclude the right of a personal representative to pursue any remedy afforded him by law or equity to reduce the possession choses in action surviving to him from the decedent. As we have shown, Hillman did not part with his title to the notes involved either *89as a gift in contemplation of his death, or by virtue of the contract averred, so that, when he died, they were proper assets for administration.
15. Subject to the exception to be mentioned, the general rule is that only the executor or administrator can litigate for the recovery of the property belonging to his decedent’s estate. The title to such property inuring to the heir must come through the personal representative of the deceased owner. An exception, however, exists when the representative himself by collusion with the debtor or otherwise obstructs the natural course which the law establishes for the transmission of the estate to the heir. Under such circumstances, the latter may join as defendants both the personal representative of his ancestor and the person from whom is due the debt or duty to the estate, and by a suit in equity reduce to the possession of the person administering the estate the assets thus outstanding, so that they may be included in the process of winding up the affairs of the decedent. Such litigation is in aid and not in derogation of the operation of the law of descents and distribution. In other words, while the personal representative, if he will, may exercise exclusively the power of reducing to possession the effects of the estate, yet, if he will not act, that prerogative may for the time being pass from him to the heir to be used for the benefit of the estate, to the end that the lawful course of descent and distribution may not be hindered or impeded. In Rowell v. Rowell. 122 Wis. 1 (99 N. W. 473), it is said in answer to the contention that the plaintiffs there showed no right of action in themselves because they as heirs or distributees had no title to any property left by their ancestor, all title to such property being vested in the administrator that: “Doubtless the law is so as to the legal title to any specific personal property. Nevertheless the equitable beneficial interest in all property of a solvent estate is *90in the legal distributees during the whole period of administration. If that interest is invaded, they must have the right that a court’s aid be invoked. Primarily and ordinarily that right is sufficiently protected by the power and duty of the administrator to bring suit to protect or reclaim any property of the estate. When, however, he allies himself with the wrongdoer, and serves as an obstacle to, instead of a protector of, the rights of his cestui que trustent, courts of equity have no hesitation in recognizing the equitable interests of the latter as sufficient to give them standing as plaintiffs in a suit to accomplish that which the administrator ought with all' diligence and good faith to pursue but will not.” Again, in Trotter v. Mutual Reserve Fund Life Association, 9 S. D. 596 (70 N. W. 843: 62 Am. St. Rep. 887), it - is stated that: “As a rule actions to recover debts due an estate must be maintained by the executor or administrator and not by the heirs or creditors; but to this rule there are exceptions, as where there is collusion between the debtor and personal representative, or he is insolvent, or where the circumstances are such that the reason of the rule ceases. When an administrator refuses to bring an action upon a claim due the estate, heirs,creditors, and others interested in its. collection should have an adequate remedy. Must they apply to the county court to have the administrator removed and one appointed who will perform his duty? The order of removal may be appealed from, and while the parties are engaged in this idle preliminary litigation the debt may be lost. A new administrator would have to sue in the circuit court. Why cannot those interested in the estate do directly and at once what it is conceded may be done indirectly and after vexatious delays? The debtor cannot complain. It matters not to him who is plaintiff because the court will provide that the proceeds of the judgment shall be distributed according to law, and such *91judgment will be a bar to another action for the same debt. It is in effect an action for the benefit of the estate brought in the name of heirs or creditors because the personal representative has refused to bring it.” This doctrine is also recognized in the following cases: Wiggins v. Cracraft. (Ky.), 40 S. W. 907; Worthy v. Johnson, 8 Ga. 236 (52 Am. Dec. 399); McChord v. Fisher’s Heirs, 13 B. Mon. (Ky.) 194; McLendon v. Woodward, 25 Ga. 252; Loyd v. Loyd’s Adm’r, 46 S. W. 485 (20 Ky. Law Rep. 347); Mason v. Spurlock, 63 Tenn. (4 Baxt.) 554; Lacy v. Williams, 8 Tex. 182; Matheny v. Ferguson, 55 W. Va. 656 (47 S. E. 886); Tillery v. Tillery, 155 Ala. 495 (46 South. 582). Here it is manifest by the allegations of the complaint as well as avowals of the answer of the executor Jones that he was claiming the property in question as his own, and would not take any steps to reduce it to the possession of the estate that it might be distributed to the heirs. The casé was ripe for the interposition of equity at the suit of the heirs in aid of proper administration of the estate, in order that the course of the descent and distribution laid down by the law might not be hindered or obstructed by the unwarranted assumption of the administrator.
The transaction delineated in the pleadings did not amount to a donatio causa mortis, for the reason, among others, that there was no delivery. Considered as a contract for the transfer of the property to Jones, it failed for want of consideration. So far as it was tantamount to a testamentary disposition of the estate, it was vain because it was not executed in conformity to the statute relating to wills. It would have been easy for the testator to execute a new will in favor of Jones or a codicil to the former one for a like purpose; but he did neither, in default of which we cannot dispose of his estate otherwise than as he left it.
We adhere to the conclusion reached in the former *92opinion, but with this difference, that neither party shall recover costs or disbursements from the other in this court. Modified as to Costs: Affirmed.