Exch. Bank v. Tracy

• Decision Date: 30 April 1883
• Citation: 77 Mo. 594
• Parties: THE EXCHANGE BANK, Appellant, v. TRACY.
• Court: Missouri Supreme Court

77 Mo. 594

THE EXCHANGE BANK, Appellant,

v.TRACY.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Macon Circuit Court.--HON. ANDREW ELLISON, Judge.

AFFIRMED.

B. R. Dysart for appellant.

Tracy, Jr., had authority to continue the business, and bind the estate of the deceased. Pitkin v. Pitkin, 7 Conn. 307; Burwell v. Mandeville, 2 How. 560; Edwards v. Thomas, 66 Mo. 468; Alexander v. Lewis, 47 Texas 481; Story Part., §§ 195, 196, 201. Judgment should have been rendered against the administrator, leviable out of the partnership estate. Asbury v. McIntosh, 20 Mo. 279.

Jas. L. Berry and Jas. M. Roberts for respondent.

The authority to continue must be express. Story Part., (4 Ed.) § 243; Pitkin v. Pitkin, 7 Conn. 307; Burwell v. Mandeville, 2 How. 560; Kirkman v. Booth, 11 Beav. 273; 3 Redfield Wills, (2 Ed.) 257; Price v. Mathews, 14 La. An. 11; Wightman v. Townroe, 2 Maule & S. 413; Webster v. Webster, 3 Swanst. 490; Washburn v. Goodman, 17 Pick. 519. No funds in the hands of administrator, no judgment against him. Roosvelt v. McDowell, 1 Kelly (Ga.) 489.

MARTIN, C.

The controlling question in this case is, whether the estate of a deceased person can be subjected to the payment of a note executed and delivered after his death by his surviving partner in the name of the old firm.

It seems that B. N. Tracy, Sr., on the 1st day of January, 1872, entered into a copartnership with his son, B. N. Tracy, Jr., under the firm name and style of “B. N. Tracy & Son,” for the purpose of carrying on a banking and brokerage business in the City of Macon. In the articles of agreement it was provided that the partnership might be terminated at any time by either party giving the other notice to that effect, and that upon dissolution the capital put in by each party was to be returned to him, and the remaining assets were to be equally divided. The profits were to be equally divided. Under this agreement the business was conducted till November, 1873, at which time B. N. Tracy, Sr., died, leaving a will which was subscribed and attested on the 10th day of November, 1873.

On the 20th day of November, 1873, B. N. Tracy, Jr., using the old firm name, published a notice in the Macon City papers addressed to the patrons of the bank to the effect that: “The decease of the senior member of our house will in no way affect its resources, arrangements having been made to keep its capital intact. The well known conservative policy of our house, with its ample capital employed, will, we trust, continue to be duly appreciated by you. Soliciting your continued patronage, we are your obedient servants.” Other notices of similar import were made to the public, and circulated among the patrons of the bank.

The will was probated on the 2nd day of December, 1873, at which date B. N. Tracy, Jr., became executor of B. N. Tracy, Sr. At the same time, as surviving partner, he became administrator of the partnership estate of “B. N. Tracy & Son.” After various specific devises the testator provided in his will as follows: Item seventh. “My executor is hereby directed and required to pay all my just debts and funeral expenses, the following debts in the following manner, to-wit: One note for $2,000, payable to Benj. N. Tracy, Jr., the 1st day of January, 1874, and one for $1,000, payable to B. N. Tracy & Son, on the 1st day of January, 1874, I desire shall be paid out of my current account with the bank of B. N. Tracy & Son. One note to B. N. Tracy, Jr., for $3,000, due April 1st, 1874, to be paid when due by transfer of that much of my stock in said bank to said B. N. Tracy, Jr., and one for $3,000, payable to B. N. Tracy, Jr., the 1st day of July, 1874, to be paid out of my current account with said bank, and if no current account at that time, to be paid out of such moneys belonging to my estate as may then be on hand. All devises and bequests herein made being subject to my debts. Item eighth. In the year of our Lord 1880, I desire and it is my wish that all the rest and residue of my estate be divided among my wife and children, as follows: To my daughter Bettie, $2,500; to my executor, $3,000, to hold for the use and benefit of my wife while she shall live, the interest whereof to be paid to her annually; and the balance of my estate, if any, equally between my four sons and my daughter Bettie.”

On the 15th day of January, 1874, B. N. Tracy, Jr., filed in the probate court two inventories, one as executor of the estate of B. N. Tracy, Sr., which does not contain any allusion to the partnership assets, except mention of a debt due from “B. N. Tracy & Son” in the sum of $364.87; the other as surviving partner of the firm of B. N. Tracy & Son, showing its net assets to be of the par value of $36,653.14.

The banking business was conducted by B. N. Tracy, Jr., under the old firm name. It is claimed by plaintiff that this was a continuation of the old firm, with the executor as successor of B. N. Tracy, Sr.; while the defendants insist that the business, after the decease of B. N. Tracy, Sr., was conducted by his son on his individual responsibility, and that he had no authority to bind either the general or partnership estate of the deceased, for any debt contracted after the decease.

In January, 1875, B. N. Tracy, Jr., filed in the probate court a statement of the condition of the firm of “B. N. Tracy & Son,” signing it as surviving partner. At the same time he also filed, as executor of B. N. Tracy, Sr., a report or annual settlement of the estate, in which, it appears that he has charged himself with what is denominated “dividends” from “B. N. Tracy & Son,” amounting to $1,497.20, for the years 1873 and 1874.

The note sued on in this case was dated August, 1875, payable sixty days after date to the plaintiff, in the sum of $9,000, with interest at ten per cent after maturity, signed “B. N. Tracy & Son.” It contains indorsements of credits in August and September, 1876, in the aggregate of $6,000, leaving a balance of $3,000 with interest.

About the 5th day of September, 1876, B. N. Tracy, Jr., failed in the business conducted by him to that time, and left the State. On the 18th day of September, his letters and authority as executor of B. N. Tracy, Sr., and as administrator of the partnership of “B. N. Tracy & Son,” were revoked, and Philip Trammel, a defendant herein, was appointed administrator de bonis non, with the will annexed, of B. N. Tracy, Sr. He was also appointed to take charge of and administer the partnership estate of B. N. Tracy & Son. The new administrator testifies that no assets of either the individual estate of B. N. Tracy, Sr., or of the partnership estate of B. N. Tracy & Son have ever come into his hands. There was evidence tending to show that the widow and heirs of B. N. Tracy, Sr., always regarded him as conducting the business on his individual responsibility.

The court, trying the case without jury, refused to give at the instance of plaintiff the following declarations of law:

1. By the terms of said will the testator's capital stock in the Banking House of B. N. Tracy & Son, and its proceeds, were left remaining in the company, and the executor was authorized to continue said banking business till the year 1880.

2. If the executor did, in fact, carry on the said banking business after the death of the testator, using the capital stock of the testator as a part of the capital of said bank until after the note sued on was given, and said note was given in the due course of said banking business, then the finding should be for the plaintiff against the defendant, B. N. Tracy, Jr., and against the defendant, Philip Trammel, administrator de bonis non, to be satisfied out of the property and effects of the firm of B. N. Tracy & Son, in his hands for the balance due on said note.

3. Upon the facts as found by the court, the plaintiff is entitled to recover and have judgment on said note for the balance due thereon, against the defendant Trammel, as administrator de bonis non, to be satisfied out of the property and effects of the firm of B. N. Tracy & Son.

The court gave the following declaration of law asked by defendants:

2. That in order to bind the individual estate of B. N. Tracy, Sr., deceased, for the debts contracted by his executor in the banking business,...