Crow, McCreery & Co. v. Weidner

• Decision Date: 31 October 1865
• Citation: 36 Mo. 412
• Parties: CROW, MCCREERY & CO., Plaintiffs in Error, v. JOSEPH A. WEIDNER, Defendant in Error.
• Court: Missouri Supreme Court

36 Mo. 412

CROW, MCCREERY & CO., Plaintiffs in Error,

v.JOSEPH A. WEIDNER, Defendant in Error.

Supreme Court of Missouri.

October Term, 1865.

Error to St. Charles Probate Court.

The defendant in error was surviving partner of the firm of Weidner & Baare, and as such administered on the partnership effects. His second annual settlement was contested by plaintiffs in error, on behalf of themselves and other creditors of the firm. Defendant in error had charged against himself in the inventory, a book account against his deceased partner for $680.88, and one against himself for $648.92. The court allowed him a credit for the amount of these two accounts as “unavailable,” both the estate of the deceased partner and the surviving partner himself being insolvent. It appeared from the settlement and the record admissions of defendant in error, that claims against the partnership (including that of plaintiffs in error) had been regularly exhibited to the survivor for allowance and classification in the first class; that he had, nevertheless, wholly disregarded the classification and exhausted the assets of the concern in paying off in full a portion of the claims, leaving about $9,000 of claims in the first class (including that of plaintiffs in error) without any payment or benefit whatsoever of the assets. It was urged by plaintiffs in error, that there should have been an apportionment pro rata of the assets among the claims exhibited in the first class. The court overruled this view, and declared the law to be, that the survivor was entitled to credits for all demands which he had paid, whether in the first or second class; provided, only, that the court be satisfied of the justness of such demands.

These points were settled by the court in giving and refusing of instructions, to which exceptions were duly saved by plaintiffs in error.

E. A. Lewis, for plaintiffs in error.

I. The first declaration of law by the court, on its own motion, is erroneous. A claim in favor of an estate, against the administrator, is assets in his hands; and a surviving partner, administering on the partnership effects, is subject to the same duties and responsibilities as an ordinary administrator. (R. C. 1855, p. 133, § 28; id. p. 125, § 65.)

II. The statute (R. C. 1855, p. 124, § 62) authorizing the surviving partner to pay off just demands, without waiting for their allowance by the probate court, goes no further than this. It does not nullify the next succeeding section (sec. 63), which, however, is rendered wholly inoperative by the effect of the instruction given. The law merely presumes that the surviving partner, from his interest in, and knowledge of the affairs of the concern, will not pay an unjust demand, and nowhere intimates a departure from those principles of equitable distribution which are established and adjusted by various other enactments. (R. C. 1855, p. 124, § 62; id. p. 125, §§ 63, 65; id. p. 152, § 5; id. p. 157, § 29; Chouteau v. Consoue, 1 Mo. 350.)

T. W. Cunningham, for defendant in error.

The court allowed these accounts as credits, not as unavailables, but as items wrongfully inventoried and charged against the surviving partner. Plaintiffs in error contend that they were debts due the intestate by the surviving partner, and support their position. (R. C. 1855, p. 133, § 28.)

The defendant in error contends--1. That he is not the administrator of the intestate. 2. That he, the surviving partner, is not indebted to the intestate; these accounts are not debts due by the surviving partner to the intestate; and, 3. That they are not assets in the hands of the survivor, neither would they be assets in the hands of the administratrix of the deceased (28 Mo. 186, Bredow v. Mut. Sav. Inst.) until an account taken and settlement made between the surviving partner and the personal representatives of the deceased partner, the debts and liabilities of the firm paid, and the balance struck, if any, and the surplus would be assets in the hands of Mrs. Baare, the administratrix of the deceased partner or intestate. (Sto. Part. §§ 346-7-8-9; Gow. Part. ch. 5, § 2, p. 236; ch. 5, § 4, p. 352, 3d ed.)

The rule is, “the stock is to be taken at the dissolution (at death for instance). and the proceeds until it is got in; and each is to be credited or allowed whatever he has advanced to the partnership, and to be charged with what he has failed to bring in, or has drawn out, more than his just proportion.” (Sto. Part., note under sec. 347, and authorities there cited.)

As to the second point made by the plaintiffs in error, the defendant in error contends that the statute does not require the demands against the partnership effects, in the hands of the surviving partner, to be allowed and classified by the probate court. These debts are joint and several; the creditors may coerce the payment either from the surviving partner or from the executor or administrator of the deceased partner's estate. (Sto. Eq. § 676.) And when the survivor pays off demands against the firm, he is entitled to credit for the amount so paid, without allowance and classification. But when the surviving partner refuses to pay the debts of the late firm, and the executor or administrator of the deceased partner gives the additional bond and administers on the partnership effects, then the statute requires the demands to be presented, allowed and classified. (R. C. 1855, p. 125, § 62, Art. I., Admin. Law.)

HOLMES, Judge, delivered the opinion of the court.

The defendant, as the surviving partner of the firm of Weidner & Baare, gave bond and took charge of the partnership effects of the firm, for the purpose of closing up the affairs of the partnership, in accordance with the statute, and made a final settlement with the probate court of St. Charles county. In that settlement, he was allowed credits on his inventory, first, for a debt due by Baare to the firm at the time of his decease, and for a debt due by himself to the firm at the same time, both appearing to have been then individually insolvent; and, second, for all moneys made on executions on debts of the firm against the individual property of the survivor, or on garnishments of debts due the firm; and, third, for all uncollected and unavailable demands which...