defendant Jacob H. Wysor, the two compos-out any further authority from any court or ing the firm of Wysor & Jack. The testator was also a member of the firm of Wysor, Jack & Kline, which was composed of the above named Jacob H. Wysor, John Jack and William B. Kline.

jurisdiction whatever; and further, that they shall make settlement with my said partners, and each of them, of the partnership affairs, and of the profits heretofore arising therefrom, together with any matters of dealing between myself and them, or either of them, in manner according to his or their judgment, without any further authority from any court whatever.

This last named firm was engaged in the milling business and owned a flouring mill, together with sixty-five acres of land adjacent, each member being the owner of an undivided 5th. I do further will and direct that my one third of the business and property. The said executors, or in case of the failure from business of the firm of Wysor, Jack & Kline any cause of either to serve, then the remainwas in no way connected with that of Wysoring executor, shall sell and convey so much of & Jack, the last-named firm being the owner my personal or real estate, at either public or of 380 acres of land which constituted part of private sale, with or without appraisement, on the firm assets, in which each partner bad an such terms, at such place and in such manner equal interest. The character of the business as to him or them shall 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, however, to my said wife the title parties as partnership property. and possession of the house and grounds where I now live, otherwise selling such parcels, the sale of which will least injure the remainder."

By the first, second and third clauses of his will, the testator appointed executors to carry the will into execution, made provision for his wife by giving her a life estate in his real estate, and expressed a desire that she should be admitted into the firm and continue the business as a partner with Wysor and Kline, his former associates in the milling business.

The fourth and fifth clauses of his will read as follows:

"4th. I will and direct that my said executors, and, in case of the death or failure to serve of either, the survivor of them, shall adjust, settle and compromise any and all debts, claims or demands due to or from me, according to the best of their or his judgment, with

In the distribution of the trust fund, partnership debts are to be ratably paid without regard to the form of the securities not constituting an actual lien held by the creditors, and this proportional equality among themselves is as necessary to be preserved as their priority over the separate creditors of the individual partners. Nicholson v. Leavitt, 4 Sandf. 300, 9 N. Y. Legal Obs. 127.

Administrator of decedent's estate.

An administrator of the estate of a decedent has nothing to do with the partnership interests, except to look after it so far as to see that no waste or fraud is committed in its management, until the surviving partner has settled up the partnership and paid all its debts, and then turned over to the administrator an equal half of what was left. Re Armstrong, 6 West. Rep. 124, 63 Mich. 355.

He cannot be made liable for negligent action of the surviving partner in closing up the business of the firm. Ibid.

He is not entitled to a participation in profits of, or to an accounting with, firms formed subsequently to his death to carry on the same business, where the new firms took the interest of deceased, believing it to have been purchased from the administrator by a third party. Demarest v. Rutan, 1 Cent. Rep. 697, 40 N. J. Eq. 356.

It is only the decedent's share of the balance to be distributed equally between the surviving partner and the representatives of the deceased partner which belongs to his representatives as part of his estate. Thomson v. Thomson, 1 Bradf. 34.

The administrator of a deceased partner has no authority to meddle with the firm assets, or to introduce into the inventory the value of his intestate's share of them; and the orphans' court should relieve him of a charge made therein of the value

As to the remainder of his property, after the termination of the life estate of the widow, the testator died intestate. After the testator died, Wysor, as surviving partner of the firm of Wysor & Jack, and Wysor & Kline, as surviving partners of Wysor, Jack & Kline, continued in possession of the property of their respective firms until June 25, 1866 when the executors of the last will of John Jack, assuming to act under the provisions of the fourth and fifth clauses of the will above set out, made a settlement and entered into an agree ment with the defendant Wysor, whereby, in consideration that the latter agreed to pay the

of such share. Shipe's App. 5 Cent. Rep. 149, 114 Pa. 205.

Only where a surviving partner fails to give bond can the administrator of the deceased partner, on giving the bond required by law, meddle with the partnership assets. Matney v. Gregg Bros. Grain Co. 1 West. Rep. 437, 19 Mo. App. 107.

Rights and remedies of surviving partners.

On the death of a partner, a dissolution of the partnership occurs, and the surviving partner becomes agent of the defunct firm for the purpose of disposing of its assets, paying its debts and settling it up; and, for this purpose, the title to such assets vests in him. First Nat. Bank v. Farmers Deposit Nat. Bank (Pa.) 5 Cent. Rep. 505,

He must proceed to sell the personal property belonging to the firm, and account for the proceeds as trustee. He cannot himself be purchaser at his own sale, at a valuation. Scudder v. Ames. 4 West. Rep. 846. 89 Mo. 496.

He is entitled to the possession and control of the partnership assets for the purpose of winding up its affairs, with or without the statutory bond. Weise v. Moore, 5 West. Rep. 58, 22 Mo. App. 530; Farley v. Moog, 79 Ala. 148; King v. Leighton, 1 Cent. Rep. 758, 100 N. Y. 386.

A surviving partner in possession of partnership property, real or personal, has a right to hold it until firm debts to himself, as well as to others, are paid. Clay v. Freeman, 118 U. S. 97 (30 L. ed. 104).

The surviving member of an insolvent partnership may make an assignment for the equal benefit of all the creditors; but his power to mortgage the partnership effects, thereby giving the mortgagee a preference over other creditors, is a question which is worthy of consideration, and which is not decided. Espy v. Comer, 80 Ala. 333.

If he be sole surviving partner and himself in

It is claimed, however, that the power of sale contained in the will did not extend to the Where it is shown that there is collusion bepartnership real estate, except that specifically tween the surviving partner and the executor, mentioned therein; that 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 there have been such in so much thereof as remained after full pay-dealings between the two as render it probable

solvent, he may assign the partnership 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 does not forbid. Emerson v. Senter, 118 U. S. 3 (30 L. ed. 49.

Surviving partner; executor of deceased partner A surviving partner who is also the executor of his deceased partner must file in the probate court, not only a true and correct inventory of the indi On the death of a partner, a cause of action in avidual property and assets of the estate, but also suit by the firm on a contract survives to the surviving partner, who is the only necessary party thereto. Matney v. Gregg Bros. Grain Co. 1 West. Rep. 437, 19 Mo. App. 107.

that the executor will not make a bona fides effort to secure an accounting, or other like circumstances appear, it has been held that the heirs may maintain the action. In the absence of special circumstances, heirs have no locus standi against the surviving partner. 2 Lindley, Partn. 494; Harrison v. Righter, 11 N. J. Eq. 389; Hyer v. Burdett, 1 Edw. Ch. 325.

Assuming, without deciding, that the facts as pleaded in the present case make it apparent that the exccutors have placed themselves in such an attitude towards the surviving partner and the transaction sought to be set aside as to bring the case within the exception, it becomes pertinent to inquire whether or not the appellants. as heirs, show any interest in the property of the late firm of Wysor & Jack upon which to predicate an action.

If the executors had no power under the will to sell and convey, or the surviving part ner was incompetent to purchase or receive a conveyance, or if, for any of the other reasons urged, the transaction between the executors and the surviving partner was illegal and the conveyance void, then the property remained in the possession and under the qualified ownership of the surviving partner, unaffected by what transpired.

It is familiar law that a surviving partner has the right to the control and possession of the property of the firm, and that he may dispose of it in order to adjust the partnership accounts, and is only liable to the representa tives of the deceased partner for what remains in his hands after the partnership affairs are

settled; and there is nothing more thoroughly settled in the law of partnership than that the rights of the heirs of a deceased partner are subject to the adjustment of all claims between the partners, and attach only to the surplus which remains when the partnership debts are all paid and the affairs of the firm wound up. Until all the debts are paid the rights of the heirs do not attach. Grissom v. Moore, 106 Ind. 296, and cases cited, 3 West. Rep. 657; Walling v. Burgess (Ind.) 7 L. R. A. 481; Deeter v. Sellers, 102 Iud. 458.

The heirs of a deceased partner have no interest, as such, in the property of the firm; their only remedy is to compel the surviving partner to account for the surplus after the settlement of all the partnership liabilities, and, ordinarily, a court of equity will not entertain jurisdiction of the affairs of a partnership until by its decree a final adjustment of the business can be effected. Thompson v. Lowe, 111 Ind. 272, and cases cited, 9 West. Rep. 671; Scott v. Sear es, 5 Smedes & M. (Miss.) 25; Rossum v. Sinker, 12 Cent. L. J. 202, and note.

Now, while it appears that the deceased partner was indebted to the firm, and that the firm was indebted on partnership account, and that the surviving partner agreed, in consideration of the conveyance which is assailed, to pay these and other debts for which the tes tator's estate was liable; and while it may be inferred from the facts alleged in the complaint that the surviving partner has paid all the debts of the firm, except what remains due to himself on the partnership account,—it nowhere appears that the entire interest of the deceased

showing a balance in his favor to be divided, he is de edent to make his general assets liable for debts insolvent, so that such balance is not substantial, assets, bis sureties on the executorial bond are not liable for such balance. Hooper v. Hooper, 32 W. Va. 526.

Where he wastes the social assets at a time when the partnership affairs are, or under the law should be, regarded as closed, if the survivor is insolvent his sureties on the executorial bond are not liable. Ibid.

The fact that executors have left to one of their number, who is a surviving partner of the testator, the entire management of the estate, and that he retains in the firm (without authority) the capital of the testator, will not give him the right to pledge securities of the estate for a loan to the firm. In such case the pledgee may be subrogated to whatever rights the pledgor has as cestui que trust or legatee in the securities pledged. First Nat. Bank v. Farmers Deposit Nat. Bank (Pa.) 5 Cent. Rep. 505.

Bond required.

A bond furnished by a surviving partner is legal and is required by law. Macready v. Schenck (La.) Apr. 22, 1889 (not yet reported).

A recovery on such a bond is not limited to nominal damages, where he has failed to pay firm creditors, while having a balance of firm moneys in his hands, which he has been ordered by the court to pay them. Miller v. Kingsbury, 128 Ill. 45.

Continuance of business after death of partner. Nothing but the clearest and most unambiguous Janguage, demonstrating in the most positive manner, by contract or by will, the intention of the

contracted in continuing trade after his death, will render his estate a partner. First Nat. Bank v. Farmers Deposit Nat. Bank (Pa.) 5 Cent. Rep. 505.

Where, upon the death of a partner, the business is continued under the management of the survivor, with the joint funds, and such survivor purchases property and erects a factory thereon with the partnership funds, and takes the title in his own name, he and his heirs hold such legal title subject to the partnership trust. A. & W. Sprague Mfg. Co. v. Hoyt, 29 Fed. Rep. 421.

And where a corporation is formed from such partnership after the purchase of such real estate, such corporation also takes the partnership's equitable title to such property. Ibid.

A surviving partner in a cotton plantation, before the war, not authorized by partnership articles or the will of the deceased partner, could continue firm business only until the then growing crop was gathered and sold. Clay v. Field, 34 Fed. Rep. 375.

The facts that the surviving partners continued the business after the death of a partner, and the assets were conveyed to one of them, under an agreement between them, in consideration of his assuming the payment of certain mortgages upon the firm property, which was carried out; and the property turned over to such partner did not exceed in value 75 per cent of the indebtedness assumed, do not affect the rights of defendant claiming as heir-at-law of the deceased partner. Jeuness v. Smith, 7 West. Rep. 323, 64 Mich. 91.

The survivor of two surgeons conducting business as copartners is not obliged to give up the business and sell the practice in the absence of any contract to that effect. Mandeville v. Harman, 5 Cent. Rep. 627, 42 N. J. Eq. 185.

partner would not be absorbed in the adjust-cretion, upon such terms as they might think ment of the partnership account with the sur- best; and the authority thus conferred necesviving partner. Ilaving averred facts from sarily operated as "diferent directions" from which the inference arises that the surviving those prescribed by the Statute. The conveypartner has paid all the partnership debts, and ance was not therefore invalid because the that the estate of the deceased partner is in- terms of the Statute were not observed or on debted to him, it is essential to the right of the account of any defect in the power of the exheirs to call him to account that they make it ecutors. appear that he has in his hands partnership property in excess of the amount required to reimburse bimself. The averments in the complaint wholly fail to do this, and the conclusion is therefore unavoidable that the complainants fail to show such an interest in the property as entitles them to invoke the aid of a court of equity.

by the fourth clause of the will to make a setlement of the partnership affairs invested the executors with ample authority, in case it became expedient or necessary in the course of the settlement to transfer property to the surviving partner, to make such transfer. Ludlow v. Cooper, supra.

the case of a sale made by the personal repre- | convey the testator's real estate. Regarding sentative of a deceased partner to a surviving the partnership assets, although consisting of partner. No good reason can be suggested lands, as personalty, and the power conferred why a surviving partner should be held legally incompetent and absolutely disqualified from becoming the purchaser of the interest of his deceased partner in the partnership business, from bis properly authorized legal representative, while very many reasons occur why such transactions, fairly entered into, should not only be upheld, but encouraged. In addition, the adjudged cases firmly support the right to make such sales. Brown v. Flee, 103 U. S. 828 [26 L. ed. 618]; Baird v. Baird, 1 Dev. & B. Eq. 524, 31 Am. Dec. 399; Chambers v. Howell, 11 Beav. 6; Roys v. Vilas, supra.

Morcover, the power contained in the fifth clause must be construed in connection with the duties imposed upon the executors by the fourth clause of the will. It will be observed that the executors are directed to sell and convey so much of the testator's real estate as they shall deem necessary to pay and satisfy his debts. Construing both clauses of the will to

In Kimbull v. Lincoln, 99 Ill. 578, after reiterating the rule that a surviving partner could not become a purchaser of the firm prop-gether, it becomes apparent that the executors erty at his own sale, nor from a co-trustee, the had authority to make any proper settlement court said: "But the reason that would forbid which, in their discretion, seemed fit and best. a transaction of this character has no applica- (2) A settlement and final accounting with tion to a case where a surviving partner pur- the surviving partner of the partnership matchases property from the executor or administers having been actually consummated by the trator of the deceased partner, and hence the executors who were duly empowered to that rule which would govern the one case cannot end, a court of equity will not disturb the setcontrol the other." Ludlow v. Cooper, 4 Ohio tlement so made until it is impeached as fraudSt. 1. ulent or unfair, or unless collision between the executors and surviving partner is shown. Nothing less than fraud or collusion will invalidate an arrangement between an executor and a surviving partner, whereby the latter became the purchaser of the deceased partner's share. Travis v. Milne, 9 Hare, 141; Davies v. Davies, 2 Keen, 534; Chambers v. Howell, supra; Stainton v. Carron Co. 18 Beav. 146; Smith v. Everett, 27 Beav. 446; 2 Lindley, Partn. Rapalje's ed. 487.

It has thus been seen that the executors had plenary power to make settlement of the partnership account, and to sell and convey the real and personal estate of the testator at their discretion, and that the surviving partner was competent to negotiate a settlement of the affaits of the firm and to purchase the interest of his deceased partner.

As has been seen, there is no pretense of any fraud or collusion in the present case.

It is contended, however, that the power which the will conferred upon the executors was a power to sell the real or personal estate of the testator, and that the power thus conferred was not well executed by the convey- Finally, after the settlement and accounting ance of the testator's interest in the real estate between the executors and the surviving partner of the firm, in consideration of the agreement has been had, and the account closed, as apto pay debts, as already indicated. The argu- pears to have been the fact in the present case, ment is that the agreement between the execu- a court of equity will not, after this long acquitors and the surviving partner was the same inescence, unexplained by circumstances, decree legal effect as an exchange of property, and the opening up of the account, even though it that a power to sell does not authorize an ex-appeared that the settlement had been irreguchange. Russell v. Russell, 36 N. Y. 581; lar y made. Taylor v. Galloway, 1 Ohio, 232; Ringgold v. Ringgold, 1 Harr. & G. 11; King v. Whiton, 15 Wis. 684; Cleveland v. State Bank, 16 Ohio St. 236.

Conceding that the proposition above stated is correct as a general rule. it cannot be made available in the appellant's behalf for two

reasons:

(1) The power conferred upon the executors comprehended much more than 2 mere naked authority to sell and convey the testator's real estate. They were especially invested with power to make settlement with the partners of the testator, and with each of them, of all matters pertaining to the partnership business, and to adjust, settle and compromise all debts, claims or demands against the estate of the testator, according to their best judgment; and, in addition to the foregoing power, they were authorized, at their discretion, to sell and 7 L. RA

It is the settled doctrine of courts of equity that unexplained delay in the prosecution of a right until it becomes stale constitutes such laches as forbids the interference of the court. Smith v. Thompson, 7 Gratt. 112, 54 Am. Dec. 126, and note; Hough v. Coughlan, 41 III. 131; 2 Story, Eq. Jur. § 1520.

Here, as we have seen, there is an unexplained delay of fourteen years. The Statute of Limitations would have barred an action between the partners themselves in case the settlements had been made by them. After this lapse of time a presumption of innocence and fair dealing arises, and removes every inference or imputation of bad faith from the transaction, and the settlement must repose as the parties made it. Prevost v. Gratz, 19 U. S. 6 Wheat. 481 (5 L. ed. 211);_Rochester v. Leo ering, 104 Ind. 562, 2 West. Rep. 330.

The judgment is affirmed, with costs.