Bush v. Clark
| Decision Date | 28 June 1879 |
| Citation | 127 Mass. 111 |
| Parties | Malvina F. Bush v. Cyrus T. Clark, administrator |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Argued November 20, 1878
Suffolk. Appeal by the administrator of the estate of Francis Bush from a decree of the Probate Court giving to the widow of the intestate, on her petition, an additional allowance of $ 1512.16, out of the personal estate of her husband.
At the hearing before Ames, J., the following facts appeared: The only property left by Francis Bush, except household furniture of the value of $ 173, which was allowed to his widow, consisted of assets of the late firm of Bent & Bush, which he held as surviving partner, and there will be nothing to the credit of his private estate, there being only assets sufficient, as appears by the inventory and the return of commissioners, to pay a dividend on the claims against said firm.
Upon these facts, the judge, being of the opinion that no allowance should have been made, ordered a decree to be entered reversing the decree of the Probate Court; and, at the request of both parties, reported the case for the consideration of the full court.
Affirmed.
H. W Chaplin, for the widow.
C. A. Welch, for the administrator. By the Gen. Sts. c. 96, § 5, the allowance to a widow is to be made merely from the "personal estate" of her deceased husband. In the case at bar, as the deceased had no private property, and as the partnership property of the firm, of which he was the surviving partner, is not sufficient to pay the partnership debts, there is no personal estate which can be allowed to the widow. The interest of the deceased in the partnership property is only to have his share as partner of what remains after the partnership debts are paid. If the deceased had not been the surviving partner and the partnership had been insolvent, the other partner would have wound up the affairs of the partnership, would have paid out and disposed of all the assets, and no property would have come to the administrator's hands. Could an allowance have been made in that case, and can it make any difference that the deceased was the surviving partner, and that the administrator winds up the partnership affairs as a matter of necessity, and because he is the representative of the firm? He stands in the same relation to the partnership property as an assignee in insolvency, or a trustee. If one partner should die, leaving a widow, and the other partner within a short time afterwards should also die, leaving a widow, and the partnership should turn out to be insolvent and neither partner leave sufficient individual property to give as large an allowance to his widow as the judge of probate should think sufficient, would the widow of the partner, who died first, have no allowance from the partnership property, and the widow of the other have an allowance out of it? or would both have it? and how would the first widow get it? Supposing one of the partners had private property and the other had not, and the partnership property was not enough to pay the partnership debts, and the partner with property died first and the other soon after, would the widow of the partner without property have an allowance out of the partnership property.
When a partnership is dissolved by the death of one of the partners the survivor becomes the owner of the personal property of the partnership. The representatives of the deceased partner have certain rights as against the survivor; the chief of these being the right of the representatives to have an account of the property, of the collection and application of it, and to receive any balance which may become due as the deceased's share of the net proceeds. The survivor is under corresponding obligations. It is his duty to collect the property, pay the debts, and pay to the...
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Hewitt v. Hayes
...An allowance may be made to his widow from the firm assets as from his own personal estate, even though the firm be insolvent. Bush v. Clark, 127 Mass. 111. He make a valid assignment of the firm property for the benefit of its creditors. Haynes v. Brooks, 116 N.Y. 487, 22 N.E. 1083. He is ......
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Hawkins v. Mahoney
... ... partner. So in Massachusetts. Sparhawk v. Russell, ... 10 Metc. 305; Allen v. Wells, 22 Pick. 450; Bush ... v. Clark, 127 Mass. 111. The distribution in case of the ... deceased partner of an insolvent firm should be the same as ... the distribution ... ...
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Hooker v. Porter
...the determination of it, and there is a wide field for the exercise of judicial discretion.’ Hollenbeck v. Pixley, 3 Gray, 521;Bush v. Clark, 127 Mass. 111;Chase v. Webster, 168 Mass. 228, 46 N. E. 705. [7] The facts that the estate was of a substantial size, that the widow was without fund......
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In re F. Dobert & Son
...Crescent Insurance Co. v. Camp, 64 Tex. 521 (527, 528); Shields v. Fuller, 4 Wis. 102, 65 Am.Dec.p. 293, and note on page 295; Bush v. Clark, 127 Mass. 111. the foregoing to the case at bar: Joseph Dobert, as surviving partner, succeeded to the title and the possession of all the partnershi......