Franklin v. Trickey

• Decision Date: 30 March 1905
• Docket Number: Civil 871
• Citation: 9 Ariz. 282,80 P. 352
• Parties: O. K. FRANKLIN, Administrator of the Estate of Jerry Neville, Deceased, Plaintiff and Appellant, v. M. M. TRICKEY, Administrator of the Estate of N. H. Chapin, Deceased, Defendant and Appellee
• Court: Arizona Supreme Court

80 P. 352

9 Ariz. 282

O. K. FRANKLIN, Administrator of the Estate of Jerry Neville, Deceased, Plaintiff and Appellant, v. M. M. TRICKEY, Administrator of the Estate of N. H. Chapin, Deceased, Defendant and Appellee

Civil No. 871

Supreme Court of Arizona

March 30, 1905

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Santa Cruz. George R Davis, Judge. Reversed.

The facts are stated in the opinion.

S. L Kingan, Barnes & Martin, and S. M. Franklin, for Appellant.

The surviving partner, Chapin, immediately after the death of Neville had two separate estates or properties in his possession, -- to wit, the partnership estate and his individual estate. The partnership estate he held as trustee. Smith v. Walker, 38 Cal. 385, 99 Am. Dec. 415.

As the surviving partner held this property in trust for the benefit of all interested in the partnership assets, so the surviving partner's personal representative, his administrator received it from the surviving partner. As it was a trust estate before the death of the surviving partner, so it remained, and so it came into the hands of Trickey. Dayton v. Bartlett, 38 Ohio St. 361; Bates on Partnership, sec. 714; Thompson v. Thompson, 1 Brad Surr. 24; Brooks v. Brooks, 12 Heisk. 12; Theller v. Such, 57 Cal. 447.

Smith & Ives, and Thomas D. Satterwhite, for Appellee.

OPINION

KENT, C.J.

The complaint in this case alleges that Neville and Chapin were partners; that Neville died on January 3, 1900, and that Chapin, the surviving partner, having possession of the partnership assets, died five days thereafter, and before the partnership affairs were adjusted; that the plaintiff, Franklin (appellant in this court), duly qualified as administrator of Neville's estate, and the defendant, Trickey, duly qualified as administrator of Chapin's estate. The complaint further alleges that the partnership property came into the possession of the defendant, Trickey, as administrator of Chapin's estate, and that he still retains such property, or the proceeds thereof, and has wound up the partnership business; and the plaintiff asks for an accounting of such partnership property, and for the payment to plaintiff, as administrator, of such portion of said partnership property as shall be found to belong to Neville's estate. The court below sustained a demurrer to the complaint on the ground that the complaint was insufficient, inasmuch as it does not contain an allegation that a claim against the estate of Chapin was filed with the administrator, as required by law.

The sole question presented for our consideration by the appeal is whether it is necessary to file a claim with the administrator before such suit as is here before us can be sustained. The provisions of our statute under which it is contended by the appellee that the presentation of such claim is necessary are as follows: "Every executor, or administrator must, immediately after his appointment, cause to be published in some newspaper of the county . . . a notice to the creditors of the decedent requiring all persons having claims against him to exhibit them with necessary vouchers to the executor or administrator." "All claims arising upon contracts hereafter made, whether the same be due, not due, or contingent, must be presented within the time limited in the notice, and any claim not so presented is barred forever." Paragraphs 1107, 1110, Rev. Stats. 1887 (re-enacted paragraphs 1739, 1742, Rev. Stats. 1901). "If the claim be not due when presented, or be contingent, the particulars of such claim must be stated." "No holder of any claim against an estate shall maintain any action thereon, unless the claim is first presented to the executor or administrator." Paragraphs 1111, 1117, Rev. Stats. 1887 (re-enacted paragraphs 1743, 1749, Rev. Stats. 1901). It is clear that the law requires, as a prerequisite to an action founded upon a claim against a decedent's estate arising upon a contract, that a claim be first presented to the administrator of such estate. The question for our determination is whether this claim to partnership assets in the hands of an administrator of a deceased partner is a claim against such decedent and his estate within the meaning of the statute. We think that there is no question that the statute does not apply to such a case. The property of the partnership, until the affairs of such partnership be settled and his share paid over to his administrator, is in no sense property of the decedent, or property to be administered as a part of his estate. Indeed, except for the circumstances of this case, -- namely, the death of both partners before the partnership was wound up, -- the administrator, as such administrator, would have no right to the partnership assets, but the surviving partner would have the right to possession. It was by virtue of the decease of his partner, Neville, that Chapin, as surviving partner, had the right of possession of the partnership assets as against the administrator of Neville. The fact that Chapin died before the partnership was wound up and its affairs settled did not give to Trickey, as Chapin's administrator, any claim upon or right to the partnership assets as a part of Chapin's estate, prior to the distribution and receipt by him, as such administrator, of Chapin's share therein. He held such partnership funds in trust for the respective partners, as their interest might appear; and while, after a division and settlement of the partnership assets, Chapin's share would properly become a part of Chapin's estate, to be administered by his administrator as a part of that estate, and subject only to claims of creditors when such claims were duly presented in accordance with the statute, on the other hand, Neville's share of such partnership or its assets does not become a part of Chapin's estate, or subject to the requirements imposed upon creditors of such estate. Neville's administrator is not suing to recover upon any claim due from Chapin or his estate, nor does he allege that the partnership funds have been administered into Chapin's estate. He is suing to recover property of Neville belonging to Neville's estate by virtue of his partnership relation, which, by reason of Neville's death and the subsequent death of Chapin prior to a settlement, has, by...