Imágenes de páginas

of special circumstances, yet such circumstances ment by the latter to pay the partnership debts, may exist as to make it proper for equity to where the wili authorized him to make settleentertain such action on their behalf.

ments with testator's partners of all matters per8. Heirs of a deceased partner cannot

taining to the partnership business, tu udjust,

settle and compromise all debts, claims and de call the surviving partner to account,

mands against the estate and in his discretion to although they bave shown that he has paid all

sell and convey so much of testator's real estate the partnership debts, where it also appears that

as should be deemed necessary to satisfy his the estate of the decedent was indebted to him,

debts. unless they further make it appear that be bas in his hands partnership property in excess of the 7. A court of equity will not disturb a amount required to reimburse himself.

settlement and final accounting of part

nersbip matters, actually consuinmate i between 8. A sale of land by executors under a

a surviving partner and the executor of the will giving them power to sell and convey it, deceased partner duly empowered to that end, either at public or private sale, with or without

until it is impeached as fraudulent or unfair or appraisement, on such terms as to them shall seem

unless collusion between the executor and sur. best, is not affected by a statute regulating the

viving partner is shown, although the latter conduct of sales of land directed by will to be

thereby became the purchaser of the deceased sold, and prescribing the manner of giving

partner's share. notice, conveying, etc..." unless by the terms of 8. After the unexplained lapse of fourthe will different directions are given."

teen years a settlement and accounting in re4. The sale of a deceased partner's in. gard to partnersbip matters between the survivo

terest in partnership real estate is au- ing partner and the deceased partner's executor thorized by a will giving power to settle, adjust will not be opened up, although the settlement and compromise all debts owing by the testator, was irregularly made. to make settlements with his former partners and to sell and convey any or all of his real estate

(March 22, 1800.) in order to pay and satisfy debts against his

estate, 6. A surviving partner may purchase

the Circuit Court for Delaware County in the interest of his deceased partner in favor of defendant in a suit to compel an ac. the partnersnip business, including purtnership counting by defendant for certain property real estate, from his properly authorized legal which bad belonged to a partnership existing represent:tive, where the transaction is fairly between detendant and plaintills' ancestor. entered into,

Affirmed. 6. An executor may convey his testa

The facts sufficiently appear in the opinion. tor's interest in partnership real estate to his Messrs. 0. T. Boaz, W. W. Herod and surviving partner in consideration of an agree- F. Winter, for appellants:


Provision for continuance in copartnership articles. ' partner ends on notice of an election to take it

Harbster's App. 125 P. 1. A provision that, in the event of the death of

A bill for an account against a surviving member either partner, it is to be optional with the survivor of the firm, to ascertain the value of the testator's whether tbe copartnership shall continue, is not an interest, may be maintained in the name of the agreement binding on botb parties, and cannot executor as plaintitf; and this valuation will in• be enforced against the heirs of one. Hart v. 20- clude profits on the share until its purchase, ger, 38 La. Ann. 341.

although the share was taken at an appraisement Where articles of partnership provide that, on previously made. DeHaven v. Anjer (Pu.) 5 Cento the death of a partner during the partnership Rep. 550. term, his executor sball he entitled to the place of the deceased partner in the firm, with the capital Agreement that survivor shall continue the business. of the deceased partner in the firm business, if he elects to come in, be comes in with all the rights Under a partnersbip agreement that upon the and liabilities of a partner, and is personally liable death of either partner the business shall be conas a partner for debts contracted in the business. ducted by the survivor, the estate of a deceased Wild v. Davenport, 5 Cent. Rep. 76, 48 N. J. L. 1:29. partner is not liable for the debts thereafter con

Articles which simply provide that his capital tracted. Butcher v. Hepworth, 115 .V. Y. 339. shall be left in the business until the end of the In such case the executors of a deceased partner partnership term do not require the admission of do not become partners in their representative the executor of a deceased partner in the manage- capacity. Ibuba ment or control of the business; and if be does not personally engage in the business he will not be continuance of business under provisions of the will. personally liable for debts, though he leaves the

A partner may, by his will, provide that the part. testator's capital in the business. Ibu. A stipulation that if either of the partners should and if it is consented to by the surviving partner,

nership sball continue notwithstanding his death; die before the expiration of the stipulated period, it becomes obligatory. Burwell v. Cawood, 43 U. " the surviving partner shall continue the business S. 2 How. 560 (11 L. ed. 378). for the unexpired term," gives the survivor the

The testator may bind his general assets for all power to employ all the partnership effects with

the debts of the partnership contructed after his out material change in the business for the residue of the term, but confers on bim no authority to death, or be may limit the liability to funds already fasten any new debt or liability on the estate of the embarked, or to any specific investments, and deceased partner. Vincent v. Martin, 79 Ala. 540.

release his general assets from liability to creditorg. Ibid,

Nothing but the most clear and unambiguous Agreement that survivor shall take decedent's interest. language, that the testator intended that his gen

Under an agreement between partners that the eral assets be liable for all debt contracted in the survivor should bave the right to take the other's continued trade after his death, will justify the interest at his option, the interest of the deceased court in arriving at such conclusion. Ibid. 7 L. R. A.

Appellants had an interest in the real estate Taylor v. Calloway, 1 Obio, 232; Ringgold v. in controversy as heirs at-law of John Jack, Ringgold, 1 Harr. & G. 11; Kiny v. Whiton, 15 deceased, and tbey have the right to maintain Wis. 684; Cleveland v. State bank, 16 Obio St. an action for the protection of such interest. 236.

As between the personal representatives and That notice of the sale has been given as rethe beirs of a deceased partner, bis share of quired by law is a jurisdictional matter. the surplus of the real estate of the partner- Rev. Stat. 1876, 8 5:8. ship, after all its debts are paid, and the equi- The absence of notice will invalidate the table claims of the members are adjusted, will proceedings. be considered and treated as real estate.

McKeever v. Ball, 71 Ind. 398. 1 Parsons, Cont. 5th ed. p. 150 and note; Tbe sale to the appellee is voidable by ap. Ilale v. Plumnier, 6 Ind. 121.

pellants, for the reason that the appellee could Where the object sought to be recovered is not become the purchaser of the property. the deceased partner's interest in tbe partner. Parsovs, Partn. *442; Ccse v. Abeel, 1 Paige, ship real estate, then the heirs-at-law, to whom 393; Sigourney v. Munn, 7 Conn. 11; Jones y. alone that interest belongs, must sue for the Dexter, 130 Mass. 380, 39 Am. Rep. 459, and accounting which is necessary to the ascertain notes, Martin v. Wyncoop, 12 Ind. 266; Runment and recovery of such interest.

sucker v. Smith, 49 Ind. 118; Murphy v. Teter, Rev. Stat. § 1070.

56 Ind. 545. The power given in the will to sell tbe tes. Mr. C. E. Shipley, for appellee: tator's real estate cannot be extended to em- Heirs and devisees of a deceased partner brace partnership real estate in which bis in. have no interest in the partnership estate until terest was unascertained and indefinite and the partnership liabilities bave all been paid, contingent.

and then only in such surplus as shall remain. Anderson v. Anderson, 31 N. J. Eq. 560; See Deeter v. Seliers, 102 Ind. 458; Thompson Kistner v. Sindlinger, 33 Ind. 114.

V. Lowe, 9 West. Rep. 671, 111 Ind. 272; Lewis The transaction between the executors and v. Harrison, 81 Ind. 278; Jewctt v. Moech, 101 the surviving partner, by which it was at- Ind. 289; Henry v. Anderson, 77 Ind. 361. tempted to transfer to the latter the entire in- Separate creditors, legatees or next of kin of terest of the decedent in all the real estate of a deceased partner have no locus standi against Wysor & Jack, was not a sale.

his surviving partners. There are some excepBouvier, L. Dici. Sale; Russell v. Russell, 36 lions to this rule. But no circumstances have N. Y. 581; Allen v. De Witt, 3 N. Y. 276; Briggs been stated bringing this case wiibin any of v. Daris, 20 N. Y. 15; Roomne v. Philips, 27 N. the exceptions. Y. 357.

Sce Rossum v. Sinker, 12 Cent. L. J. 202, A power to sell will not authorize an ex. Editor's note; ld. 241; 2 Lindley, Partn. 4th change for other property.

ed. pp. 1067-1069; Harrison v. Riyhter, 11 N.

Where he declares that his capital shall be of the effects of the concern for the benefit of him. chargeable, but not bis other property, such other self and the estate of his deceased partner. Clothed property will not be chargeable with the partner with the legal authority to dispose of the partnership debts. Jones v. Walker, 103 U. 8. 444 (26 L. ed. ship effects, it follows that the exercise of that 404),

authority will be sustained in equity, if the disposiDividends and profits fairly made cannot be tion be for the common benefit of himself and the called on to pay firm debts. Ibill.

estate of his deceased partner. Beste v. Burger, 17 The authority of an executor to continue a specif. Abb. N. C. 169; White v. Union Ins. Co. 1 Nott & Ically designated existing interest in a firm does not McC. 556. extend to the use in its business of any other funds Op general principles a surviving partner is the of the estate, or to the use of any property wbich owner of the partnership assets; he bas the legal he received in his ofhcial character, to raise funds title, and it is only in a court of equity that he is for that purpose. Smith v. Ayer, 101 U. S. 320 (25 L. treated as trustee. Re Sauls, 5 Fed. Rep. 717; Staned. 955),

ford v. Lockwood, 95 N. Y. 588; Nehrbose v. Blisa, Under a will by wbich the testator provides that 88 N. Y. 600; Hoyt v. Sprague, 103 U. S.613 (26 L. ed. his executors shall manage and carry on bis busi- 585); Palmer v. Myers, 43 Barb. 513. ness for a certain time for the benefit of his wife

He holds the assets as quasi trustee, first for the and children, and the only executor who gualifies partnership creditors, and afterwards for the per. is a son, who, after the execution of the will, had (sonal representatives of the deceased partner, and become a partner of the testator, interested simply a court of equity may intervene to afford relief in a share of the profits, be is entitled to an inter against waste, negligence, misconduct or other vioest in the protits, as well as to the salary pro-lation of duty on his part. Farley v. Moog, 79 Ala. vided by the will, for the time during wbich he

148. continues the business as the will requires. Allen's

On the dissolution of a partnership by the death App. 125 Pa. 511.

of one of its members, the surviving partner is Continuance of business by consent of beneficiaries. entitled to the possession and control of the firm

alone suable at law for partnership debts, and is Where the legal representatives and all the bene- assets to enable him to discharge the debts and to ficiaries consent to a continuance of the business by settle the affairs of the partnership. Kirkpatrick the surviving partners, they cease to bave a lien v. McElroy, 5 Cent. Rep. 68, 41 N. J. Eq. 539; 3 Kent, upon the property as against the subsequent cred. Com. 64; 2 Liud. Partn. 605; Murray v. Mumford, 6 itors of the concern. Hoyt v. Sprague, 103 U. 8.613 Cow. 441. (20 L. ed. 585).

It is the right of the representatives of a deceased

or bankrupt partner to share in the profits of all Surviving partner; duties of.

business unfinished at the dissolution but comIn equity the surviving partner is considered a pleted afterwards, and a valuation of such business trustee to pay the partnership debts, and to dispose as of the time of the dissolution will not be re

J. Eq. 389; Huston v. Neil, 41 Ind. 504; Stain- 1 *490, § 15, note 1; Rossum v. Sinker, 12 Cent, ton v. Carron Co. 18 Bcav. 146; Hyer v. Bur. L. J. 202, editorial notes and ciiations, 241. dett, 1 Edw. Ch. 325; 2 Lindley, Parin. 2d Lon- A trustee under a power of sale may ex. don ed. p. 1060; Miles v. Wherler, 43 III. 123; change the property for other property. Davies v. Daries, 2 Keen, 534; 1 Collyer, Partn. Rossum v. Sinker, supra; Perry, Tr. 4th ed. 444, § 288; Luulow v. Cooper, 4 Ohio St. 1; Roys S 769. v. Vilas, 18 Wis. 169; Willson v. Nicholson, 61 There are none of the elements of the coInd. 241; Broron v. Slee, 103 U. S. 828 (26 L. trusteeship between the surviving partuer and ed. 618); Pfeffer v. Steiner, 27 Mich. 537; Kiin. the executor of the deceased pariner. ball v, Lincoln, 99 Ill. 578; Chambers v. Ilowell, Kimball v. Lincoln, 99 Ill. 578. 12 Jur. 905, 11 Beav. 6; Nelson v. Hayner, 66 The conveyance to Wysor was valid. Ill. 487; Merritt v. Dickey, 38 Micb. 41; Baird Rossim v. Sinker, supra. See Parsons, v. Baird, 1 Dev. & B. Eq. 524, 31 Am. Dec. 399; Partn. 1st ed. p. 442, citing Chambers v. Howell, Shanks v. blein, 104 U. s. 18 (26 L. ed. 635),| 11 Beav. 6, 12 Jur. 905; kimlall v. Lincoln, 846 13 Cent. L. J. 369; Barry v. Briggs, 22 Mich. pra; Boaz v. McChesney, 53 lod, 193; R0.8 v. 201; Skillen v. Jones, 44 Ind. 136; Rusk v. Gray, Vilas, 18 Wis. 169; Nelson v. Nayner, 66 m. 83 Ind. 589; Dinkle v. Reid, 43 Ind. 390; Cobble 487; Brown v. Slee, 103 U. S. 828 (26 L. ed. 618); v. Tomlinson, 50 Ind. 550; 2 Wms. Exrs. 61b Baird v. Baird, 1 Dev. & B. Ey. 524, 31 Am. Am. ed. 814.

Dec. 399; Shanks v. Klein, 104 Ú. S. 18 (26 L. An account and settlement by the executor ed. 635), 13 Cent. L. J. 369; Ludlow v. Cooper, of a deceased partner with the surviving part- 4 Ohio St. 1. ner of the partnership affairs are binding as between the surviving partner and the persous Mitchell, Ch. J., delivered the opinion of interested in the estate of the deceased partner, tbe court: and cannot be impeached save on the ground This suit was instituted by Emily E. Valen. of fraud.

tine, Martha M. Little, Parmelia R. Gilbert, 2 Lindley, Partn. 1070, 1409, 2d London ed. Mary E. Wood and Florence T. Howe, the 1060; 1 Collyer, Partn. 382, § 249; Barry v. children and beirs at-law of John Jack, late of Briggs, 22 Mich. 201; Davies v. Davies, 2 Keen, Delaware County, deceased, against Jacob H. 534; Smith v. Ererett, 27 Beav. 446; Yeatman Wysor. v. Yeatman, L. R. 7 Ch. Div. 210; Ludlow v. Ibe questions for decision arise upon the Cooper, 4 Obio St. 1.

complaint, from wbich we summarize the fol. The executors could sell to the rviving lowing facts: partner, ard the surviving partner could buy Jolio Jack, father of the plaintiff below, died from the executors.

testate in the month of October, 1859. At and Chambers v. Howell, 12 Jur. 905; 1 Lewin, Tr. before tbat dale be was in partnership with the

quired unless peculiar circunstances, exempting Rights and liabilities of. See note to Patton v. the particwar case in equity from the operation of Leftwich (Va.) 6 L. R. A. 569. the general rules, exist. King v. Leighton, 1 Cent, Application of property to payment of partnerRep. 701, 100 N. Y. 392; Wedderburn v. Wedderburn, ship debts. See notes to Darby v. Gilligan (W.Va.) 22 Heav. 84; Simpson v. Chapman, 4 DeG. M. & G. 6 L. R. A. 740. 154; Murray v. Mumford, supra.

Accounting by. See note to Walling v. Burgess, The remaining members become trustees of the supra. assets for the purpose of winding up its affairs and distributing its effects, and they will not be allowed

Equitable rule as to partnership assets. to reap a profit made by the use of the partuership The partnership property of the firm shall be apassets after dissolution. King v. Leighton, supra; plied to the payment of the partnership debts, to Williams v. Whedon, 39 Hun, 101; Egberts v. Wood, the exclusion of creditors of the individual mem3 Paige, 517; Skidmore v. Collier, 8 Hun, 50; Hooley bers of the firm. Fussett v. Tallmadge, 18 Abb. Pr. v. Gieve, 7 Abh. N. C. 271.

53; Bowen v. Billings, 13 Ncb. 444; Hutchinson v. As a general rule surviving or solvent partners Smith, 7 Paige, 26; Story, Eq. 8 675. cannot take the assets of the firm at a valuation as And creditors of the latter are to be first paid out of the time of the diseolution. They have a right of the separate effects of their debtor, before the to the possession and control of the assets, but it is partnership creditors can claiin anything there. for the purpose only of satisfying the liabilities of from. Bowen v. Billings, 13 Neb. 444; Jackson v. the firm and turning the effects into money in the Cornell, 1 Sandf. Ch. 350, 3 N. Y. Legal Obs. 90; Fasmanner most advantageous to the interests of all sett v. Tallmadge, 18 Abb. Pr. 53; Wilder v. Keeler, concerned. King v. Leighton, supra; McClean v. 3 Paige, 167; Payne v. Matthews, 6 Paige, 19; North Kennard, L. R. 9 Ch. App. 342.

River Bank v. Stewart. 4 Bradf. 237, 4 Abb. Pr. 409; Where the surviving partner of a firm becomes Butts v. Genung, 5 Paige, 2756. fosolvent and his individual creditors levy attach- Partnership property is a trust fund to the extent ments on the partnership property, the partnership of partnership liabilities to be applied in satisfaccreditors may come into equity to enforce their tion of the game. Roop v. Herron, 15 Neb. 80; right to priority of payment out of the partnership Innes V. Lansing, 7 Paige, 503; Whitewright v. assets. Furley v. Moog, 79 Ala. 148, 58 Am. Rep. Stimpson, 2 Barb. 379. 586.

But it has never been supposed that the creditors The trust relation in fact which imposes the duty could resori to equity to reach the property, when of payment of the partnership debts is between the there has been a wrongful disposition of the assets, survivor and the representatives of the deceased until the remedy at law bas been exhausted. Walpartner. Williams v. Whedon, Skidmore v. Collier ser v. Seligman, 21 Blatchf. 132, 13 Fed. Rep. 410; and Hooley v. Gieve, supra; Case v. Abeel, 1 Paige, Dunlevy v. Tullmadge, 32 N. Y. 457. 893.

The creditors of a partnership come in through Surviving partners; duties of. See note to Walling the medium of the partner and his equities. Robb v. Burgess (Ind.) 7 L. R. A, 481.

V. Stevens, Clarke, Ch. 197. 7 L, R. A.

defendant Jacob H. Wysor, the two compos-out'any further authority from any court or ing the firm of Wysor & Jack. Tbe testator jurisdiction whatever; and furtber, that ibey was also a member of the firm of Wysor, Jack shall make settlement with my said partners, & Kline, which was composed of the above and each of them, of the partnership affairs, damed Jacob H. Wysor, John Jack and Wil. and of tbe profits beretofore arising thereírom, liam B. Kline.

togeiber with any matters of dealing between This last named firm was engaged in the myself and them, or either of tbem, in manner milling business and owned a flouring mill, to- according to his or their judgment, witbout gether witb sixty-five acres of laud adjacent, any further autbority from any court whatever. each member being the owner of an undivided **5th. I do furiber will and direct that my one ibird of the business and property. The said executors, or in case of ibe failure from business of the firm of Wysor, Jack & Klive any cause of either to serve, then the remainwas in no way connected with tbat of Wysoring executor, shall sell and convey so much of & Jack, the last-named firm being the owner ny personal or real estate, at either public or of 380 acres of land which coustituted part of private sale, with or without appraisement, on the firm assets, in which eacb partner Lad an such terms, at such place and in such manner equal interest. The cbaracter of the business as lo him or them sball seem best, as may be of Wysor & Jack does not distinctly appear, necessary to pay and satisfy all my just debts, but the land owned by them is treated by both reserving, bowever, to my said wife the title parties as partnership property.

and possession of the bouse avd grounds where By the first, second and third clauses of his I now live, otherwise selling sucb parcels, the will, the testaior appointed executors to carry sale of which will least injure the remainder." tbe will into execution, made provision for bis As to the remainder of his property, after wife by giving her a life estaie in bis real es- the termination of the life es!ale of the widow, tate, and expressed a desire that she should be the testator died iniestate. After the testator admilled into the firm and continue the busi died, Wysor, as surviving partner of the firm Dess as a partner with Wysor and Kline, bis of Wysor & Jack, and Wysor & Kline, as surformer associates in tbe milling business. viving paripers of Wysor, Jack & Kline, con

The fourth and fifth clauses of his will read tinued in possession of the property of tbeir us follows:

respective dirms until June 25, 1866 when the “4th. I will and direct that my said execu- executors of the last will of Jobo Jack, assumtors, and, in case of the death or failure to ing to act under the provisions of the fourth serve of either, the survivor of them, shall ad. and fiftb clauses of the will above set out, just, settle and compromise any and all debts, made a settlement and entered into an agreeclaims or demands due to or from me, accord- ment with the defendant Wysor, whereby, in ing to the best of their or his judgment, with. I consideration lbat the latter agreed to pay the

In the distribution of the trust fund, partnership of sucb share. Shipe's App. 6 Cent Rep. 149, 114 debts are to be ratably paid without regard to the Pa. 205. form of the securities not constituting an actual Only where & surviving partner fails to give lien beld by the creditors, and this proportion- bond can the administrator of the deceased partal equality among themselves is as necessary to ner, on giving the bond required by law, meddle be preserved as their priority over the separate with the partnership assets. Matney v. Gregg crelitors of the individual partners. Nicholson v.

Bros. Grain Co, I West, Rep. 437, 19 Mo. App. 107. Leavitt, 4 Sandf. 300, 9 N. Y. Legal Obs. 127.

Rights and remedies of surviving partners. Administrator of decedent's estate.

On the death of a partner, a dissolution of the

partnership occurs, and the surviving partner be An administrator of the estate of a decedent has comes agent of the defunct firm for the purpose of nothing to do with the partnership interests, ex. disposing of its assets, paying its debts and settling cept to look after it so far as to see that no waste it up; and, for this purpose, the title to such assets or f'rand is committed in its management, until the vests in him. First Nat. Bank v. Furmers Deposit surviving partner has settled up the partnership Nat. Bank (Pa.) 5 Cent. Rep. 505, and paid all its debts, and then turned over to the He must proceed to sell the personal property administrator an equal balf of wbat was left. Re belonging to the firm, and account for the proceeds Armstrong, 6 West. Rep. 124, 63 Mich. 355.

as trustee. He cannot himself be purchaser at his He cannot be made liable for degligent action of own sale, at a valuation. Scudder v. Ames, 4 West. the surviving partner in closing up the business of Rep. 846. 89 Mo. 496. the firm. ibid.

He is entitled to the possession and control of the He is not entitled to a participation in profits of, partnership assets for the purpose of winding up or to an accounting with, firms formed subsco its affairs, witb or without the statutory lond. quently to his death to carry on the same business. Weise v. Moore, 5 West. Rep. 58, 22 Mo. App. 530; where the new firms took the interest of deceased, Farley v. Moog, 79 Ala. 148; King v. Leighton, 1 believing it to huve bien purchased from the ad. Cent. Rep. 758, 100 N. Y. 386. ministrator by a third party. Demarest v. Rutan, A surviving partner in possession of partnership 1 Cent. Rep. 697, 40 N. J. Eq. 356.

property, real or personal, hus a right to hold it It is only the decedent's share of the balance to until firm debts to hipself, as well us to others, are be distributed equally between the surviving pail. Clay v. Freeman, 118 U. S. 97 (50 L. ed. 104). partner and the representatives of the deceased The surviving member of an insolvent partner. partner which belongs to his representatives as part ship may make an assignment for the equal benefit of bis estate. Thomson v. Thomson, 1 Bradf. 34. of all the creditors; but his power to mortgage the

The administrator of a deceased partner has no partnership effects, thereby giving the mortugee authority to meddle with the firm assets, or to in- a preference over otber creditors, is a question trodure into the inventory the value of his integ- which is worthy of cousideration, and which is not tate's share of them; and the orphans'court should decided. Espy v. Comer, 80 Ala. 333. relieve him of a charge made therein of the value If he be sole surviving partner and himself inindebtedness of the firm of Wysor & Jack, ment of the partnership debts. Moreover, it and certain debts due from the testator 10 is claimed that even if the executors bad auWysor, and also to pay his share of all the un- thority to sell, tbe transaction as disclosed by paid indebtedness of Wysor, Jack & Klipe, and the complaint was not a sale witbin the mean. all other indebtedness of the testator, including of tbe language employed in the will, and ing the cost of admivistration, and, in addition, tbut because the sale was made by the execuconvey certain property to tbe widow, aud se tors witbout baving given notice of the time, cure to her one third interest in tbe property place and icrms of sale, and without baving of Wysor, Jack & Kline free from any debts, included the value of the real estate in the the execuitors and widow agreed to convey to bond given by ibem when they qualified, the the defendant Wysor all the interest of the res- conveyance was ipvalid and void. It is claim. tator, excepting certain designated parcels, in ed, too, ibat Wysor, being the surviving partthe real estate owned by the tirm of Wysor & ner of ihe firm of Wysor & Jack, was a trustee Jack. This agreement was consummated and of the partnership property, under a duty to conveyances were made_accordingly by the the beiis and creditors, and that he was lierewidow and executors in June, 1866: and it is fore incompetent to purchase and receive & charged that the defendant claims, in virtue of conveyance from tbe executors. these conveyances, to be tbe sole owner of the For all these reasons, it is urged that the property, and denies the title of the plaip'iffs. conveyance is illegal and ongbi to be set aside,

These conveyances stood without question and that an accounting of the affairs of the until in February, 1880, when this suit was in- firm of Wysor & Jack sbould be had, the apstituted.

pellants alleging their readiness to pay what It does not appear from the complaint that ever may be found due the defendant Wysor. tbere was any disparity between the value of Wbile it is undoubtedly true, as a general the property conveyed and the amount of debts rule, that an action to compel a surviving partassumed, or that the debts have not been paid ner tu account can only be maintained by the according to the agreement, or that tbere was personal representative of tbe deceased paiiner, any fraud or collusion between the surviving yet circumstances may appear which create an partner and the executors, or that the latter exception to the general rule, and make it were in any way overreached.

proper that a court of equity should entertain It is claimed, however, that the power of an action on bebalf of the beirs. sale contained in the will did not extend 10 The Where it is shown that there is collusion be. partnersbip real estate, except that specitically tween the surviving partner and the executor, mentioned therein; tbat if it did, it only author. the latter refusing to compel an accounting by ized the executors to sell the testator's interest the former, or where ibere have been such in so much thereof as remained after full pay. I dealings between the two as render it probable

solvent, he may assign the partnersbip assets for Sim, 529; Townsend v. Devaynes, referred to in the benefit of partnership creditors, with pref- 11 Sim. 498. erences to some of them, where the local law dues Where articles of copartnership expressly de. not forbid. Emerson v. Senter, 118 U. 8. 3 (30 L. clare tbat real estate purchased by the tim shall be ed. 49.

considered as possessing all the incidents and liaHis fraudulent omission from the schedules of bilities of partnership funds and personal property, certaiu partnership property, for his owo benefit, and are duly probated as part of the will of a dedoes not make the assignment void where the as- censed partner, the surviving partner may convey signee and the beneficiaries of the trust are igno- a perfect legal title to such property as against the rant of the fraud. lbid.

heirs of the deceased, although he does not sell for His neglect to wind up the concern will not re- the purpose of paying partnership debts. Davis v. lieve assets from tbe lien of partnership debts, or Smith, 82 Ala. 198. permit tbe Statute of Limitations to run in favor of the heirs of the decedent partner, so as to en- Surviving partner; executor of deceased partner able them to obtain an interest in the property A surviving partner who is also the executor of without payment of debts. Clay v. Freeman, bis deceased partner must file in the probate courto supra.

not only a true and correct inventory of the indi. On the death of a partner, a cause of action in a vidual property and assets of the estate, but also suit by the firm on a contract survives to the sur- of the partnersbip property, showing who are viving partner, who is the only necessary pariy partners, the place of business, its nature and charthereto. Matney v. Gregg Bros. Grain Co. 1 West. acter, the terms of the partnership, capital con. Rep. 437, 19 Mo. App. 107.

tributed by each and some statement of the assets

and liabilities as far as known. Perrin v. Lepper, Rights as to heirs of decedent.

72 Vich. He can dispose of the equitable interest, and the He must keep accurate, distinct accounts and purchaser can compel the heirs-at-law of the de- exhibit them when called upon by the heir or bis ceased partner to protect the purchase by a legal attorneys, and to all persons interested in the es. rigbt. Sullivan v. Smith, 16 Neb. 483; Andrews v. tute. In case of doubt as to the proper construcBrown, 21 Ala. 443.

tion of the will in regard to final disposition of the As between bimself and the heir of the deceased estate, be must apply to the proper court, and have partner, he bas an absolute right to dispose of the the matter settled, and take its direction in refur. real estate purchased for and used in the partner- ence thereto. il,id. ship business and paid for out of funds of the firm, On his death his representative has no more in the same manner as if it were personal estate. right to the exclusive control of the co-partner. Delmonico v. Guillaume, 2 Sandf. Ch. 366, 7 N. Y. ship books, papers and property of the partnere Ch. L. ed, 627; Shanks v. Klein, 104 U. S. 33 (26 L. slip estate than has the representative of the de ed. 6336); Fereday y. Wightwick, 1 Russ. & M. 45; ceased partner. Ibid. Phillips v. Phillips, 1 Mylne & K. 649; Broom v. If be makes a statement of receipts and disburse. Broom, 3 Mylne & K. 443; Cookson v. Cookson, 8ments as survivor in winding up the business

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