Executors of Loop v. Administratrix of Loop

• Citation: 1 Vt. 177
• Parties: EXECUTORS OF PHILYER LOOP v. ADMINISTRATRIX OF JOSEPH B. LOOP
• Decision Date: 01 January 1828
• Court: Vermont Supreme Court

1 Vt. 177

EXECUTORS OF PHILYER LOOP v. ADMINISTRATRIX OF JOSEPH B. LOOP

Supreme Court of Vermont, Grand Isle

January, 1828

[Syllabus Material] [Syllabus Material]

This was an appeal taken from the decree of the Court of Probate relative to the accounts existing between the two estates. The accounts had been sent to an auditor who made a detailed report to this court, to which exceptions were taken. A great portion of the report and papers in the cause have no direct relation to any principle now to be decided; but only to various items of the accounts, some of which fall within those principles, and others are at rest without any exception to the auditor's decision. The history of the transactions of the parties, so far as need now be mentioned, is, That Philyer Loop was in trade, and, about a year before his death, took into partnership his son Joseph B. Loop, who was a minor, about eighteen or nineteen years of age. After this partnership had existed about a year, Philyer made his will, and soon after died. In his will he bequeathed as follows, to wit: " The other two thirds of my property I give and bequeath to my children about mentioned, equally forever, with this exception, that is, Joseph B. Loop is to have one half of the profits in trade while in company with me for about a year past, the other half of the profits, and the whole stock is to be considered my property." He made the said Joseph B. Loop, and Lewis Sowles and Wm. L. Sowles, his executors, who, after his death, proved the will, & c. Joseph B. Loop carried on the trade in the store and acted as executor till some time after he was of age, collecting debts and paying out money in satisfaction of debts, in whole and in part. After this he died, and the defendant took administration of his estate. The questions now principally litigated were, whether Joseph B. Loop is entitled to the whole profits of the trade during the partnership, or only half of the same, by virtue of the above clause in said will? Also whether the infancy of said Joseph B. Loop shall screen him from accounting for the stock in trade, and any share of the profits belonging to the said Philyer Loop at his decease?

The counsel for the defendant contended, That the decision of the auditor overruling the defence of infancy, was clearly incorrect. The stock in trade was the joint property of the two partners, and the infancy, of J. B. Loop discharged him from his liability for the partnership debts, and his own debt to the firm, so far as the same was not for necessaries. The auditor, however, has subjected the estate of J. B. Loop to the full extent of all these claims, without any sufficient confirmation of his liability by J. B. Loop, after arriving at full age. A part payment of a debt contracted in infancy is not a confirmation without an express promise to pay the balance: much less is the mere settling of partnership accounts to a trifling amount, as in this case; That the report ought to have shown what particular acts were done by J. B. Loop, after he arrived at full age, and not show, generally, that he settled some accounts and made some payments, & c. Otherwise, the court must remain in doubt whether such acts were sufficient to amount to a confirmation and a waiver of the privilege of infancy. The defendant insists that the estate of J. B. Loop is made to answer for certain claims twice--once as surviving partner, and once as executor of P. Loop. The counsel also contended, that the estate of J. B. Loop is wrongfully charged with one half of the profits of the partnership--for that by the will of P. Loop and the character of a partner, J. B. Loop was entitled to the whole of said profits.

The counsel for the plaintiffs contended, 1st That from the will it is evident the testator intended that J. B. Loop should have but half of the profits of the trade of the firm of P Loop & Son. And when this language of the testator is taken in connection with the facts, that J. B. Loop was a minor during the existence of the partnership, that he put no capital into the stock of the firm, and that there were no written articles of partnership, it appears to be an irresistible inference that the testator...