Cogswell's Heirs v. Freudenau

• Decision Date: 01 April 1902
• Court: Missouri Court of Appeals
• Parties: COGSWELL'S HEIRS et al. v. FREUDENAU.<SMALL><SUP>1</SUP></SMALL>

67 S.W. 744

93 Mo. App. 482

COGSWELL'S HEIRS et al. v. FREUDENAU.¹

Court of Appeals of St. Louis, Missouri.

April 1, 1902.

PARTNERSHIP—SETTLEMENT — EXCEPTIONS— INTERESTED PARTIES—CLAIM BY SURVIVING PARTNER—ESTOPPEL.

1. Where a surviving partner qualifies as administrator of the partnership estate, on affidavit that the deceased partner owned a half interest in a fund due the firm from the government, and the decedent's heirs discontinue their claim as against the government, and assert it against the partnership, such surviving partner, after collection of the claim in his capacity as administrator, cannot assert that it was never a partnership asset.

2. Where a decedent's alleged indebtedness to a surviving partner for payments by him are barred, such surviving partner, in settlement of the partnership estate, cannot retain a fund against the decedent's heirs as in partial settlement of such indebtedness.

3. The heirs of a deceased partner are sufficiently interested in his estate to entitle them to except to the settlement of an administrator of the partnership estate.

4. Objections to allowances in an administrator's settlement of a partnership estate, not urged in the briefs, will not be considered on appeal.

Appeal from St. Louis circuit court; Warwick Hough, Judge.

Settlement by William Freudenau, as surviving partner, of the partnership estate of Cogswell & Co., to which the heirs of John C. Cogswell present exceptions. From a judgment of the probate court, affirmed by the circuit court, both parties appeal. Affirmed.

J. P. Maginn, for plaintiffs. R. M. Nichols, for defendant.

GOODE, J.

In 1859 or 1860 John C. Cogswell and William Freudenau, the defendant, were partners in the milling business in the city of St. Louis. The copartnership paid sundry taxes to the United States government, which it turned out were illegally collected, and were afterwards refunded by the government between the years of 1868 and 1897, the last money being refunded in the latter year, and amounting to $1,306. Congress passed an act for the relief of Cogswell & Co. in 1897, on learning of which the heirs of John C. Cogswell set up a claim to one-half the money which was to be refunded before the proper department of the government, and William Freudenau made claim to all of it as his individual property, by virtue of an assignment from his former partner, John C. Cogswell. Cogswell's heirs consulted an attorney on learning of said act of congress, and, while the matter was in the hands of this attorney and being pushed by him before the department, he learned of Freudenau's claim, which was likewise being pushed by the latter's attorney. Some correspondence and interviews ensued between Freudenau and Maginn, the attorney of the Cogswell heirs, in which Freudenau made known to Maginn his claim to the whole of the fund on the ground that it had been assigned to him by Cogswell, and Maginn asserted, as against this claim, that the amount was a partnership asset, and half of it belonged to his clients, the heirs of John C. Cogswell. The federal government refused to pay it to any one except a duly qualified administrator of the estate of Cogswell & Co., and Freudenau, as the surviving partner, took out letters of administration on the partnership estate in the probate court of the city of St. Louis. His application for letters was as follows: "Application for Administration of Partnership Estate. State of Missouri, City of St. Louis—ss.: To the Hon. Leo Rassieur, Judge of the Probate Court of the City of St. Louis: The petition of the undersigned, William Freudenan, respectfully represents: That he is the surviving partner of the late firm of Cogswell & Co., which was composed of your petitioner and John C. Cogswell; that said John C. Cogswell died on or about the twenty-eighth day of March, 1894; that he was a resident of the city of St. Louis, in the state of Missouri; that the interest of said deceased in the property and assets of said copartnership does not exceed the sum of six hundred and fifty-three dollars in value; consisting of a claim against the United States by aforesaid firm for $1,306, said claim being allowed by an act of the 54th congress, to be adjusted by the commissioner of internal revenue. Wherefore your petitioner desires to give bond and qualify as such surviving partner, and to take charge of and administer said partnership estate. William Freudenau." "The above-named William Freudenau, being duly sworn, on his oath says that the matters and facts set forth in the foregoing petition are true, to the best of his knowledge, information, and belief. William Freudenau, #3427 Barrett St."

It will be seen from the foregoing application that Freudenau stated the interest of John C. Cogswell, deceased, in the property and assets of the copartnership did not exceed the sum of $653 in value, and that the assets consisted solely of a claim against the United States by the aforesaid firm for $1,306, thus designating as a partnership asset the very money now in controversy. The United States paid the money to Freudenau as administrator, who placed it to his credit as administrator in the Mississippi Valley Trust Company, and afterwards checked it out and used it for his own benefit. When the time came for him to make final settlement, instead of making one, he filed in the probate court a statement in regard to the administration, in which he referred to the old firm of Cogswell & Co. and recited that at the time of the dissolution of it Cogswell assigned to him all his interest in nonavailable assets, including the claim against the United States government; that during the lifetime of Cogswell he collected a large amount of these unavailable claims, with the knowledge of Cogswell, who never demanded...