Bird v. Bird

• Decision Date: 16 November 1885
• Citation: 1 A. 455,77 Me. 499
• Parties: BIRD v. BIRD, Adm'x. (Two Cases.)
• Court: Maine Supreme Court

1 A. 455

77 Me. 499

BIRD

v. BIRD, Adm'x. (Two Cases.)¹

SUPREME COURT OF MAINE.

Filed November 16, 1885.

C. E. Littlefield, for plaintiff.

True P. Pierce, for defendant.

DANFORTH, J. By the statements of facts agreed upon in these cases, it appears that previous to May 10, 1882, there was a partnership in business consisting of the plaintiff, Hanson G. Bird, and David N. Bird. On that date Hanson G. Bird died, and the defendant was duly appointed and qualified as his administratrix. Subsequently the plaintiff gave bond as surviving partner, and was duly qualified to settle the partnership affairs. It further appears that said firm is largely insolvent, and that the plaintiff has, in paying its debts, exhausted all its assets except the claim now in question, besides paying from his own funds a sum much larger than this claim. The estate of Hanson G. Bird has been rendered and is insolvent, and commissioners appointed and qualified. The claim in suit is for a private indebtedness of the defendant's intestate to the firm, as found upon his books at his decease. The defense is that the plaintiff should have proved his claim before the commissioners of insolvency, and shared in the distribution of the estate as other creditors, under the provisions of Rev. St. c. 66, § 1.

That the claim in suit is a part of the assets of the firm upon which the creditors, as well as the individual members of the firm, who have paid more than their share of its liabilities, or received less than their share of its effects, have a lien, may be conceded. As such it belongs to the partnership, and it becomes the duty of the plaintiff, as surviving partner, to turn it into money for the settlement of the partnership affairs. If the firm were solvent, a portion of this claim would have belonged to the intestate liable to his private debts, and the plaintiff and administratrix would have held it as tenants in common. But as the firm is insolvent, the joint creditors having a preference, the whole of this claim becomes a fund for their payment, and thereby belongs exclusively to the plaintiff, and necessarily a debt against the estate. As such debt the plaintiff seeks to recover it in these actions, and but for the representation of insolvency the action at law might have been maintained. Such debts it is the duty of the administratrix to pay, but she must pay them in the way pointed out by the law. She had the right to interpose insolvency, as she has done, and, having interposed it, by the express terms of the statute she is exempt from actions for any debt except in a few specified instances, and these suits, both of which are for the same causes of action, come within none of the exceptions named; in fact, it is not claimed that they do, or that they were pending at the time the representation of insolvency was made and prosecuted, to ascertain the amount due, as evidence to be given the commissioners, or that the amount ascertained may be added to the report of the commissioners; but they are prosecuted independent of the commission, not only for judgment, but for execution; not only to ascertain the amount due, but that the whole amount shall be paid. This is done, not under or in pursuance of any provision of the statute, but in spite of it, relying "upon the equitable lien for reimbursement, upon common common-law principles applicable to partnerships independent of any statute."

While there is such a lien at common law where the statute does not apply, when it does, the common law, if in conflict, must yield. But in this case there is no conflict. Strictly speaking, the firm have something more than a lien upon the claim in suit; it has the ownership of it. But, whether lien or ownership, it does not change the...