Cultra v. Cultra
| Decision Date | 10 June 1949 |
| Citation | 221 S.W.2d 533,188 Tenn. 506 |
| Parties | CULTRA et al. v. CULTRA et al. |
| Court | Tennessee Supreme Court |
Appeal from Chancery Court, Obion County; W. W. Herron, Chancellor.
Suit by George Cultra and others against Sayre Elizabeth Cultra and others, to determine whether realty owned by partnership descended to heirs of deceased partner, or continued to be personalty and subject to the laws of distribution. From a decree that realty was to be disposed of as personalty, an appeal was taken.
Decree affirmed.
Where partners, for purpose of partnership, acquired realty, and thereafter two of the partners died, realty was required to be disposed of as personalty, and interest in realty did not descend to after-born child of one of the deceased partners to the exclusion of the widow of such deceased partner. Code §§ 7841-7882.
Miles & Miles, Union City, for complainants.
Robert D. Fry, Union City, for defendants.
This case presents the question of whether or not the real estate owned by a partnership, purchased by said partnership with partnership funds for partnership purposes, and not needed to pay partnership debts, descends to the heirs of a deceased partner or continues to be personalty and subject to the laws of distribution.
The cause was heard below on bill, answer and on a stipulation of facts. It is shown, and was found by the chancellor, that four people (Cultra's) were partners doing business under the trade name 'Morning Star Nursery,' the interest being 1/3 in one of the four and 2/9 in the other three. These partners for the purpose of the partnership acquired three tracts of land. Two of these tracts of land were acquired in the name of the four partners, 'Trading and doing business as Morning Star Nursery,' while the third tract was merely acquired in the names of the individuals the trade name not being inserted in the deed. It is shown though without question that this third tract was acquired by partnership out of partnership funds and for partnership purposes.
Two of the partners have died. The question here is raised by the after-born child of one of these partners. This child through her guardian ad litem takes the position that the property descends as realty to her to the exclusion of the widow, that is, the interest of her deceased father. The chancellor held that this property, all having been acquired with partnership, funds and for the use of the partnership, upon the death of the partners, their interest therein was to be disposed of as personalty and that the surviving partners had a right to sell this land and then distribute the proceeds thereof as other partnership property.
Prior to the enactment of the Uniform Partnership Law in 1917, Chapter 140 of the Public Acts of that year and is now carried in the Code as Sections 7841-7882 inclusive, the courts of this State have uniformly held that it is a rule of property that real estate of a partnership is held as personalty for the purposes of the partnership but where not needed for such purposes it descends, as other real estate, to the heirs. Williamson v. Fontain, Ex'r, 66 Tenn. 212.
In thus holding the courts of this State were in line with the majority of the cases in the United States. These cases hold that the real estate, in equity, is regarded as personal property so long as it was necessary to use the real estate in settling and paying debts of the partnership and in adjusting the equities between the partners, but after this was done, any real estate remaining descends as real estate and was subject to laws of descent and distribution. See the full and copious Annotation 25, A.L.R. 389, 414, where cases from practically every state in the Union are cited and many are digested, setting forth the respective rules as adopted by various states.
Since the adoption of the Uniform Partnership Act above referred to, the courts of this State have not passed upon the question. One case, Marks v. Marks, 1 Tenn.App. 436, apparently held that the passage of this Act did not affect the previous law, but in deciding that case, the court more or less went off on the proposition that the facts of the case did not show that it was the intent of the partnership to use the realty for partnership purposes or in other words, they held that the interested parties failed to carry the burden of showing that that intent appeared. We, therefore, do not consider this case as an authority upon the question here presented. It is true that in the Marks case, the court there cited Williamson v. Fontain, supra, but in citing it, the court merely said this was...
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Vlamis v. De Weese
...637. The Courts in the States that have adopted the Act generally agree. Ewing v. Caldwell, 243 N.C. 18, 89 S.E.2d 774; Cultra v. Cultra, 188 Tenn. 506, 221 S.W.2d 533; In re Ostler's Estate, 4 Utah 2d 47, 286 P.2d 796; La Russo v. Paladino, Sup., 109 N.Y.S.2d 627; Blodgett v. Silberman, 27......
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Marriage of Allen, Matter of
...partnership real estate must be regarded as personalty for all purposes. As an exemplar of such cases he cites Cultra v. Cultra, 188 Tenn. 506, 221 S.W.2d 533, 535 (1949). He argues that although the specific point he urges may not have been written up, the principle of recognizing a partne......