Blaker v. Morse
| Decision Date | 10 December 1898 |
| Docket Number | 10862 |
| Parties | ALFRED BLAKER, as Executor of the last will of John Hood, v. O. E. MORSE, Receiver |
| Court | Kansas Supreme Court |
Decided July, 1898.
Error from Linn district court; WALTER L. SIMONS, judge.
Judgment affirmed.
Snoddy & Snoddy, for plaintiff in error.
J. D McCleverty, for defendant in error.
OPINION
This was an action by Alfred Blaker, executor of the last will of John Hood, deceased, against O. E. Morse, receiver of the firm of Hood & Kincaids, to have a certain claim of about $ 8000 held by the executor against Hood & Kincaids declared a trust claim upon the funds and assets in the hands of the receiver. On and prior to January 3, 1883, Hood was a member of the firm of Hood & Kincaids, which was engaged in the banking business at Pleasanton, Kan., the other members of the firm being Zalmon, Robert and Joseph Kincaid. On the date mentioned Hood died testate, and by his will his property, other than his partnership interests, was bequeathed absolutely to certain legatees, and Alfred Blaker was designated as executor. The partnership interest was bequeathed to his copartners, to be used and disposed of in the following manner: The will directed the continuance of the partnership business for a period of five years after the death of Hood, the partners to conduct it as they deemed best, using their own judgment and discretion in all business affairs, without the interference of the executor or legatees, or other persons, except as expressly provided in the will. The executor and the partners were to make an inventory of all the property, credits and effects of the partnership as at the time of the testator's decease, together with a schedule of its liabilities, and file the same in the probate court. It was directed that the partners were to account for and pay to the executor annually a certain proportion of the net profits of the business for the preceding year, and there was a provision that the partners or trustees retain the trust funds in the business for the term of five years after the death of the testator, and that at the expiration of that time, unless an agreement was made between the trustees and the executor to continue the business, they settle and close up the trust business. Upon a settlement of the partnership business the funds belonging to the estate were to be paid to the executor, to be distributed by him in the manner directed in the will.
Soon after the death of Hood, Blaker qualified as executor, and the surviving partners elected to continue and carry on the business in accordance with the provisions of the will. At the end of five years the executor notified the partners that he desired to settle and close up the partnership business, and in an application to the probate court he represented that he had entered into negotiations with the surviving partners, and that a settlement had been made which he deemed to be fair and reasonable and most advantageous to the estate. All of the parties appeared in the probate court, where a full settlement was had of the partnership affairs, which was approved and entered of record in that court. By the terms of the settlement the surviving partners were to retain the greater part of the partnership assets of the firm of Hood & Kincaids, and were to assume and discharge all the indebtedness and liabilities of the firm. They were given the right to carry on the business in the old firm name of Hood & Kincaids, but with no liability against the Hood estate. The executor was to receive an insurance policy for $ 10,000 and certain promissory notes, and the remaining property and assets were to be sold and transferred to the surviving partners, in consideration of which they were to pay the sum of $ 20,000, giving the executor therefor four notes of $ 5000 each, due in six, twelve, eighteen and twenty-four months, with four of their brothers as sureties thereon. A formal bill of sale and transfer was made by the executor to the surviving partners, conveying the property sold, and in pursuance of the settlement the four notes were duly executed and delivered to the executor.
The new firm continued the business for some time, and paid off two of the notes and a part of the third. On July 17, 1893, it became...
To continue reading
Request your trial
-
Storm v. Garnett
...bar to the subsequent adoption of the others. 15 Cyc. 259; Missouri Pacific Ry. Co. et al., v. Henrie, 63 Kan. 330 65 P. 665; Blaker v. Morse, 60 Kan. 24, 55 P. 274; New York, L. E. & W. R. Co. v. Estill, 147 U.S. 591, 37 L. Ed. 292; Conrow et al. v. Little et al., 115 N.Y. 387, 22 N.E. 346......
-
Power Grocery Co. v. Hinton
... ... provide for a continuance of the partnership after the death ... Insley v. Shire, 54 Kan. 793, 39 P. 713, 45 ... Am.St.Rep. 308; Blaker v. Morse, 60 Kan. 24, 55 P ... 274; Exchange Bank v. Tracey, 77 Mo. 594; ... Parnell v. Thompson, 81 Kan. 119, 105 P. 502, 33 ... L.R.A. (N ... ...
-
Ireland v. Waymire
... ... 747, 39 P. 701; National Bank v ... National Bank, 57 Kan. 115, 45 P. 79; Burrows v ... Johntz, 57 Kan. 778, 48 P. 27; Blaker v. Morse, ... 60 Kan. 24, 55 P. 274; Bank v. Haskell County, 61 ... Kan. 785, 60 P. 1062; Railway Co. v. Henrie, 63 Kan ... 330, 65 P. 665; ... ...
-
Herbert v. Wagg
...bar to the subsequent adoption of others. 15 Cyc. 259; Missouri Pacific Ry. Co. et al. v. Henrie, 63 Kan. 330, 65 Pac. 665; Blaker v. Morse, 60 Kan. 24, 55 Pac. 274; New York, L. E. & W. R. Co. v. Estill, 147 U. S. 591, 13 Sup. Ct. 444, 37 L. Ed. 292; Conrow et al. v. Little et al., 115 N. ......