Charles v. Eshleman

• Decision Date: 01 December 1879
• Citation: 5 Colo. 107
• Parties: CHARLES v. ESHLEMAN ET AL., EXECUTORS.
• Court: Colorado Supreme Court

5 Colo. 107

CHARLES v. ESHLEMAN ET AL., EXECUTORS.

Supreme Court of Colorado

December, 1879

Appeal from the County Court of Jefferson County.

THE facts are sufficiently stated in the opinion.

Mr. J Q. CHARLES, appellant pro se.

Mr. R S. MORRISON, for appellee.

BECK J.

The appellant was employed in his professional capacity as a lawyer by the deceased, John H. McMurdy, to manage and attend to certain suits involving the title of the Dives mine at Georgetown. McMurdy was one of the owners of the mine, and was, at the time of employing appellant, acting as its manager. After his decease, the professional services rendered not having been paid, appellant presented his account therefor to the County Court of Clear Creek County and caused it to be filed as a demand against the estate. Objections to its allowance were made by the executors, and the issue of fact as to the liability of the estate, was submitted to a jury, who returned a verdict for the appellees. A new trial and change of venue were granted, and the cause removed to the County Court of Jefferson County where the issues were again submitted to a jury, against the appellant's objections, and a like result followed, the jury returning a verdict for the estate.

The first error assigned is that the court erred in permitting the cause to be tried by a jury. There was no error in this. The statute provides that 'the manner of exhibiting claims against estates shall be by filing in the county court the account or instrument of writing, or an exemplification of the record, whereon such claim is founded. Formal pleading shall in no case be required; but the issues shall be formed, heard and determined in the same manner as in actions before justices of the peace.' (General Laws, section 2,918.)

It will be perceived that the statute provides the mode of trial, as well as the formation of the issue. Section 1,506 provides, that 'at any time before evidence is given in any suit before a justice of the peace, either party, upon advancing the jury fees, may demand to have the cause tried by a jury,' etc. It was evidently the intention of the legislature to adopt the same practice in respect to trials of issues of fact, in the county court, when sitting for the purpose of the adjudication of claims against the estate of deceased persons, as in ordinary trials before justices of the peace, and the fact that the court is permitted to exercise an equitable jurisdiction in the allowance of claims, does not deprive litigants of the right of submitting questions of fact to juries, at least in actions not purely equitable.

The other errors assigned relate to the conduct of the trial, the giving and refusing instructions, and in overruling appellant's motion for a new trial.

The appellant's claim, as presented, was for a sole employment by McMurdy; the defense interposed was, that it was a general employment in the name and for the joint benefit of a partnership, and concerning the partnership property; and as such the estate was not liable, but that the claim must be presented against the survivors only. The appellant controverts the proposition that it was a joint employment, but insists that if it was, the county court would have jurisdiction to allow the claim as an equitable demand against the estate of the deceased, on the principle that partnership debts are joint and several in equity.

The English rule is, that all partnership contracts are to be held joint and several in equity, and that upon the death of a partner a creditor of the firm may proceed at once in equity against the estate of the deceased, whether the firm or the surviving partners be solvent or otherwise; but it requires that the surviving partners be made parties to the bill, because they are interested in taking the account. Parsons on Partnership, Sec. 448; 1 Story's Eq. Jur. 676.

This rule has been greatly modified by statute in this country. Our statute upon the subject of wills, executors and administrators is similar to the statute of Illinois on the same subject, its main provisions being a transcript of that statute We may, therefore, look into the decisions of the courts of that State for rules to guide us in the construction of this statute. The rule there adopted is, if there be partnership property and also separate property of a deceased partner, the partnership debts are to be paid out of the proceeds of the joint estate, and the individual debts are to be paid out of the proceeds of the separate estate. Pahlman's Ex'rs, etc. v. Graves, 26 Illinois, 405.

It will be observed, that while it is held that courts of probate may exercise an equitable jurisdiction in the allowance of claims against estates of deceased persons, such courts are strictly restrained from infringing on the foregoing rule.

In the case of Moline Water-Power and Manufacturing Company v. Webster, 26 Ill. 239, Chief Justice Caton says:

'We wish to be distinctly understood, that no claim should be allowed against the estate for a partnership debt, till it is shown that all the partnership assets have been exhausted. Till this is done, no equitable claim ever arises against the estate.' See also, Pahlman's Ex'rs v. Graves, supra, p. 408.

The appellant's position, therefore, that if the claim should be found to be a partnership debt, and not the individual debt of the testator, the probate court had jurisdiction to allow it in this proceeding as an absolute demand against the estate, cannot be sustained. In order to save the bar of the...