Doggett v. Charles H. Dill.

• Decision Date: 23 January 1884
• Citation: 108 Ill. 560,48 Am.Rep. 565,1884 WL 9750
• Parties: KATE N. DOGGETT, EX'X.v.CHARLES H. DILL.
• Court: Illinois Supreme Court

108 Ill. 560

1884 WL 9750 (Ill.)

48 Am.Rep. 565

KATE N. DOGGETT, EX'X.

v.CHARLES H. DILL.

Supreme Court of Illinois.

Filed at Ottawa Jan. 23, 1884.

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Circuit Court of Cook county; the Hon. KIRK HAWES, Judge, presiding.

Messrs. STILES & LEWIS, and Mr. R. W. PIKE, for the appellant:

A partnership demand can not be proved against the individual estate of a deceased partner until the legal remedy against the partnership assets and surviving partners has been exhausted. In this State partnership obligations are strictly joint, and not several. Coates v. Preston et al. 105 Ill. 470.

At common law, upon the death of one of two or more joint obligors, the obligation survived, and could be enforced only against the survivors. 2 Wharton on Contracts, sec. 832; Dicey on Parties, 237; Gere v. Clark, 6 Hill, 350.

In equity the obligation could be enforced against the estate of a deceased partner after the legal remedy against the survivors had been exhausted. Lane v. Williams, 2 Vern. 292; Jacomb v. Harwood, 2 Ves. Sr. 263.

The rule in England finally developed into the doctrine that in equity a partnership creditor might proceed immediately against the estate of a deceased partner, without regard to whether there were partnership assets, or whether the surviving partners were solvent. Devaynes v. Noble, 1 Mer. 529; Wilkinson v. Henderson, 1 M. & K. 582; Thorp v. Jackson, 2 Y. & C. Ex. 553.

Although the probate court has jurisdiction to allow equitable claims, yet this claim can not be ascertained on equitable principles until the legal remedies have been exhausted. That court can not adjust the equities in the first instance.

The case of Mason v. Tiffany, 45 Ill. 392, and Silverman v. Chase, 90 Id. 37, following, are based upon the doctrine that a partnership debt is joint and several. The case of Coates v. Preston, supra, has, however, settled the law in this State that such a debt is joint.

In support of the first proposition announced, counsel referred to and commented on the following cases outside this State: Grant v. Shenton, 1 Wend. 148; Voorhis v. Childs, 17 N. Y. 354; Caldwell v. Stillman, 1 Rawle, 212; Hubble v. Perine, 3 Ohio, 287; Horsey v. Heath, 5 Id. 353; Sherman v. Kreul, 42 Wis. 33; Bergwin v. Hostler, 1 Taylor, (N. C.) 124; Philson v. Bumpfield, 1 Brev. (S. C.) 202; Bennett v. Woolford, 15 Ga. 213; Pendleton v. Phelps, 4 Day, 476. Messrs. DEXTER, HERRICK & ALLEN, for the appellee:

It is conclusively settled, in this State, that appellee could prove his claim against the estate of Doggett, in the first instance, without showing that the assets of the partnership and of the surviving partners had been exhausted. Silverman v. Chase, 90 Ill. 37; Mason v. Tiffany, 45 Id. 392.

The cases of Pahlman v. Graves, 26 Ill. 405, and Moline Water Power Co. v. Webster, 26 Id. 230, rest upon an entirely different principle.

Joint creditors may have their demands allowed and satisfied out of the deceased debtor's estate, except where it may work an injury to the separate or individual creditors, who alone can complain. McCulloch v. Dashiell, 1 H. & G. 106; Lewis v. United States, 13 N. B. 33; Ridgeway v. Clare, 9 Beav. 111; Washburn v. Bank, 19 Vt. 278; Dean v. Phillips, 17 Ind. 406; Wisham v. Lippincott, 1 Stockt. Eq. 353.

The probate court has jurisdiction to allow equitable claims against estates. Moore v. Rogers, 19 Ill. 347; Dixon v. Buell, 21 Id. 203; Hand v. Slater, 43 Id. 348; Garvin v. Stewart, 59 Id. 229; In re Steele, 65 Id. 322; People v. Harrison, 82 Id. 84; Westbay v. Williams, 5 Bradw. 521; Armstrong v. Cooper, 11 Id. 561; Freeland v. Dazey, 25 Id. 296; Harris v. Douglas, 64 Id. 466; Blanchard v. Williams, 70 Id. 647; Hales v. Holland, 94 Id. 494.

That a partnership obligation is both joint and several, see, further, Morrison v. Keutz, 15 Ill. 193; Rainey v. Nance, 54 Id. 29; Ladd v. Griswold, 4 Gilm. 25; Nelson v. Hill, 5 How. 127; Lewis v. United States, 92 U. S. 618; Saunders v. Wilder, 2 Head, 577; Irby v. Graham, 46 Miss. 425; Freeman v. Stewart, 41 Id. 138; McLain v. Carson, 4 Ark. 164; Weaver v. Thornburg, 15 Ind. 124; Kimball v. Whitney, Id. 280; Hardy v. Overman, 36 Id. 549; Camp v. Grant, 21 Conn. 41; Strong v. Niles, 45 Id. 52; Filyan v. Laverty, 3 Fla. 72; Travis v. Tartt, 8 Ala. 577. Mr. JUSTICE CRAIG delivered the opinion of the Court:

William E. Doggett died April 3, 1876, testate, and Kate E. Doggett, appellant, who was named as executrix, qualified as such in the probate court of Cook county. Doggett, at the time of his death, and for many years before, was a member of the firm of Doggett, Barrett & Hills. In 1871, T. C. H. and Lucy W. Smith executed their two promissory notes for certain sums of money, payable to Charles H. Dill. The two notes, on the date of their execution, were guarantied by Doggett, Barrett & Hills, the firm name to the guaranty being executed by Doggett. No effort was made by Dill to collect the amount due on the notes from the firm assets, or from the surviving members of the firm of Doggett, Barrett & Hills, but after the death of Doggett he presented the claim to the probate court, to be allowed against the estate of deceased. The probate court, upon the evidence introduced, allowed the claim, and the executrix appealed to the circuit court, where a second trial was had, resulting in a judgment against the estate. An appeal was then taken to the Appellate Court, where the judgment of the circuit court was affirmed, and this record is brought here by the executrix for the purpose of reversing the judgment of the Appellate Court.

It is insisted by appellant that a partnership demand can not be allowed against the individual estate of a deceased partner until the legal remedy against the partnership assets and surviving partners has been exhausted.

In Mason v. Tiffany, 45 Ill. 392, which was a proceeding in chancery, by a creditor of a firm, to enforce payment of a firm debt against the estate of Tiffany, a deceased member of the firm, it was held, that every partnership debt being joint and several, it follows, necessarily, that resort may be had, in the first instance, for the debt, to the surviving partners, or to the assets of the deceased partner. In the decision of the case it is said: “If it was a fact that the surviving partners remained solvent for a long time before the assignment, and the assigned assets were sufficient to pay this claim, still these did not require the complainant to press his claim against them, the estate of the deceased partner being equally a fund on which he had a right to rely.” This case seems to establish the doctrine, in plain words, that a creditor, in equity, has the right, where he holds a claim against a firm, one member of which has died, to proceed against the estate of the deceased member or the surviving partners, as he may elect.

In Silverman v. Chase, 90 Ill. 37, the same question arose, and, following the doctrine of the case last cited, it was said: “A partnership debt is joint and several, and the creditor has the right to elect whether he will proceed against the assets in the hands of the surviving partner or against the estate of the deceased partner, as held by this court in Mason v. Tiffany, 45 Ill. 392. Nor will the laches of the creditor in following the assets of the firm preclude a recovery. The creditor has the right to proceed against the estate at any time before the Statute of Limitations has run, and a failure to pursue the partnership assets can not be relied upon as a defence when suit is brought against the estate.”

These two cases would seem to be conclusive of the question presented, so far, at least, as this court is concerned, as they, in terms, decide the same question involved in the record before us, and it would not be deemed necessary to say anything more on the question were it not for the fact that it is claimed that these cases are in conflict with prior decisions of this court, and the doctrine therein announced is not sound, and in harmony with the current of authority on the subject. We have therefore concluded to briefly refer to some of the authorities which have a bearing on the question, with the view of showing that the decisions of this court are fully sustained by the weight of authority. Story on Partnership, sec. 362, says: “The doctrine formerly held upon this subject seems to have been, that the joint creditors had no claim whatsoever in equity against the estate of the deceased partner, except when the surviving partners were at the time, or subsequently became, insolvent or bankrupt. But that doctrine has been since overturned, and it is now held, that in equity all partnership debts are to be deemed joint and several, and consequently the joint creditors have, in all cases, the right to proceed at law against the survivors, and an election also to proceed in equity against the estate of a deceased partner, whether the survivors be insolvent or bankrupt, or not.” The same doctrine, but in different language, is declared by Story in his work on Equity Jur. sec. 676.

Collyer on Partnership, sec. 580, declares the law in the following language: “It is now established beyond controversy, that in the consideration of courts of equity, a partnership debt is several as well as joint, and that upon the death of a partner a joint creditor has a right in equity to proceed immediately against the representative of the deceased partner for payment out of his separate estate, without reference to the question whether the joint estate be solvent or insolvent, or to the state of accounts amongst the partners.”

Dixon on Partnership, 113, says: “When a liability exists the creditor may, at his option, either pursue his legal remedy against the survivor, or resort in equity to the estate of the deceased, and this altogether without regard to the state of the accounts...