Gloyd v. Gloyd

• Decision Date: 18 March 1922
• Citation: 239 S.W. 73,293 Mo. 163
• Parties: FLEMMON E. GLOYD, Appellant, v. SAMUEL M. GLOYD, WALTER B. TAYLOR and WILLIAM B. GLOYD, as Trustees, and GEO. H. ENGLISH, Administrator of Estate of ALBERT M. GLOYD, Appellants, and MAIETTE S. GLOYD, Respondent
• Court: Missouri Supreme Court

239 S.W. 73

293 Mo. 163

FLEMMON E. GLOYD, Appellant, v. SAMUEL M. GLOYD, WALTER B. TAYLOR and WILLIAM B. GLOYD, as Trustees, and GEO. H. ENGLISH, Administrator of Estate of ALBERT M. GLOYD, Appellants, and MAIETTE S. GLOYD, Respondent

Supreme Court of Missouri, Second Division

March 18, 1922

Appeal from Jackson Circuit Court. -- Hon. Edward E. Porterfield Judge.

Affirmed and remanded.

A. F Evans for plaintiff; George H. English for Trustees and Administrator; B. R. Hogan for Gloyd Realty Company.

(1) Partnership equities consist of the right each partner has to have the entire assets of the firm applied, first, to the payment of partnership debts; second, to advances made by him to or on behalf of the partnership; third, to the restoration to each partner, on settlement of the partnership accounts of that part of the capital which has been contributed by him to the common stock; and, fourth, distribution of the residue in proportion to his interest in the partnership. Carlisle's Admr. v. Mulheim, 19 Mo. 56; Priest v. Chouteau, 85 Mo. 406; Dyer v Clark, 5 Met. 562; 3 Pomeroy's Eq. Jur. sec. 1243 p. 2982; 20 R. C. L. 1031, sec. 273; Buchan v. Sumner, 2 Barb. Ch. 165, 47 Am. Dec. 313. (2) Partnership real estate is to be treated in equity to all intents and purposes as personally, and is subject to all equitable rights which apply to the personal estate. Carlisle's Admr. v. Mulheim, 19 Mo. 56; Troll v. St. Louis, 257 Mo. 626; Bell v. McCoy, 136 Mo. 252; Armour v. Frey, 253 Mo. 447; Easton v. Courtwright, 84 Mo. 27; Arnold v. Wainwright, 6 Minn. 358; Crocker v. Crocker, 46 Me. 250; Riddle v. Whitehill, 135 U.S. 621; Bates, Partn. sec. 300; 1 Rowley, Mod. Law of Partn. p. 324, sec. 286. (3) All rights of action concerning partnership property vests in the survivor. Hagardine v. Gibbons, 114 Mo. 565; Easton v. Courtwright, 84 Mo. 33. And this is the law even though the survivor neither qualifies nor gives bond, in all cases where the executor or administrator of the deceased partner is not appointed administrator of the partnership estate. Easton v. Courtwright, 84 Mo. 38; Crook v. Tull, 111 Mo. 288; Goodson v. Goodson, 140 Mo. 215; Bredow v. Savings Inst., 28 Mo. 181; State ex rel. v. Hubbard, 203 S.W. 251. (4) Individual members of a firm have no several interest in the partnership property. The title is in the firm as an entirety, and the interest of each partner is what remains after partnership debts are paid and accounts between partners adjusted. Easton v. Courtwright, 84 Mo. 39; Lyman v. Lyman, 2 Paine (U. S. Cir. Ct.) 11; McPherson v. Swift, 22 S.D. 165; 1 Rowley, Modern Law of Partn. sec. 291; 22 Am. & Eng. Ency. Law, 95. (5) The surviving partner, and the trustees of the deceased partner and his personal representatives, and successors in interest have the right to demand and compel conversion of partnership property into money as the only means by which they may know that they, respectively get their just share or portion. Bispham's Equity, sec. 514; 30 Cyc. 689; Godfrey v. White, 43 Mich. 179; 22 Am. & Eng. Ency. Law (2 Ed.), p. 99; Lyman v. Lyman, 2 Paine (U. S. Cir. Ct.) 11; Darby v. Darby, 2 Drewery, 503; Dickinson v. Dickinson, 29 Conn. 600; Singleton v. Moore, 262 F. 357. (6) The circuit court, by its final decree, assumes to exercise judicial power not granted by law to it, and invades the jurisdiction of the probate court, causes a conflict of jurisdiction and greatly impedes and impairs the administration of justice in the Probate Court of Jackson County. (a) The probate court is vested with exclusive original jurisdiction over the administration and settlements by the surviving partner of the co-partnership estate of the Gloyd Lumber Company, and also exclusive original jurisdiction of all matters relating to the administration of the estate of Albert M. Gloyd, deceased. Sec. 34, Art. VI, p. 129, Mo. Constitution; Secs. 2542, 189, 80 to 92, 220, R. S. 1919; Gregory v. Menefee, 83 Mo. 413; Easton v. Courtwright, 84 Mo. 36; Miller v. Woodward, 8 Mo. 169; Pearce v. Calhoun, 59 Mo. 271; Ensworth v. Curd, 68 Mo. 282; Caldwell v. Hawkins, 73 Mo. 450; In re Estate of Elliott, 98 Mo. 384; Scott v. Royston, 223 Mo. 568; Strode v. Gilpin, 187 Mo. 391; Hammons v. Renfrow, 84 Mo. 332; State ex rel. v. Bird, 253 Mo 569; State ex rel. v. Shackelford, 263 Mo. 62; State ex rel. v. Tincher, 258 Mo. 15; 3 Pomeroy's Eq. Jur. (4 Ed.) sec. 1154; Johnson v. Beazley, 65 Mo. 250; Overton v. McFarland, 15 Mo. 312. (b) Jurisdiction to administer the estate of a partnership, dissolved by death, is vested in the probate court of the county where the business of the partnership was conducted. R. S. 1919, sec. 80. And the administration of a partnership estate includes the following: Fixing the amount of the surviving partner's bond. R. S. 1919, sec. 83. Compelling inventory of property. R. S. 1919, sec. 66. Fixing amount of bond of executor or administrator of deceased partner, in event surviving partner fails to give bond. R. S. 1919, sec. 85. Allowing demands against partnership estate when the surviving partner refuses or neglects to pay them. R. S. 1919, secs. 88, 90. Allowing demands against partnership estate in all cases when the executor or administrator of the deceased partner takes charge of partnership effects. R. S. 1919, secs. 88, 90. Exercise of general jurisdiction over administration of partnership estates. R. S. 1919, secs. 91, 92. Fixing and allowing compensation to surviving partner. R. S. 1919, sec. 220; Hope v. Jones, 24 Cal. 89. Allowing credit to surviving partner for expenditures. R. S. 1919 sec. 220. Allowance and classification of demands. Elevator Co. v. Thompson, 166 Mo.App. 170. Giving credits for uncollected accounts. Skinner v. Whitlow, 184 Mo.App. 245. Requiring notice of final settlement. State ex rel. v. Donegan, 12 Mo.App. 198. Appointing successor to the surviving partner in event of his death. State ex. rel. v. Hubbard, 199 Mo.App. 137. Allowing fees of attorneys of surviving partner. Skinner v. Whitlow, 184 Mo.App. 229. Executing judgments of other courts allowing demands against the estate. Bank v. Clifton, 263 Mo. 200. Executing judgments of courts having jurisdiction on appeal from probate court. R. S. 1919, sec. 291; State ex rel. v. Bird, 253 Mo. 591. Secs. 181 182, 207, R. S. 1919, are now applicable to partnership estates. Elevator Co. v. Thompson, 166 Mo.App. 170. Secs. 231, 232, R. S. 1919, apply to partnership estates. Skinner v. Whitlow, 184 Mo.App. 245. The surviving partner is now required to give notice of his final settlement in the probate court. State ex rel. v. Donegan, 12 Mo.App. 198. (c) The surviving partner cannot, if he wished, put it out of his power to wind up the partnership estate in the probate court, or take away from the administrator de bonis non the right and duty imposed on him by law to take charge and make such settlement of partnership estate when surviving partner does not. Nor does assumption by the circuit court of jurisdiction over the property oust the probate court of its lawful jurisdiction. R. S. 1919, secs. 81, 85; Bell v. McCoy, 136 Mo. 552; State ex rel. v. Withrow, 141 Mo. 69; Brown v. Woody, 64 Mo. 550; Dodson v. Scroggs, 47 Mo. 287. (7) Courts of equity do not have jurisdiction in Missouri to administer or wind up a partnership estate which has been dissolved by death. Ensworth v. Curd, 68 Mo. 283; State ex rel. v. Withrow, 141 Mo. 85. (8) The jurisdiction of courts of equity is not concurrent with that possessed by probate courts, in Missouri. Equity interposes only in special or extraordinary cases which come within the scope of equity and over which probate courts have not been given jurisdiction by statute; or, after the probate court has acted, on the ground of fraud or other like recognized ground of equitable relief; and any such case of jurisdiction ceases with its necessity. Mattson & May v. Pearson, 121 Mo.App. 129; Society v. Eells, 68 Vt. 497; Byers v. McAuley, 149 U.S. 619; Reinhardt v. Gartrell, 33 Ark. 727; Wallace v. Sweptston, 74 Ark. 520; 3 Pomeroy's Eq. Jur. sec. 1154; 10 R. C. L. 359, sec. 109. (9) A court of equity cannot draw to itself jurisdiction to allow demands against a co-partnership estate, or to allow compensation to the surviving partner for his services as such, or to determine and allow costs of administration, or to distribute an estate, by granting equitable relief in some incidental matter belonging distinctively to equitable cognizance, such as to compel those holding a legal title in trust to convey it to the owner and holder of the equitable title. Mattson v. Pearson, 121 Mo.App. 129; Domestic & Foreign Society v. Eells, 68 Vt. 497; Reinhardt v. Gartrell, 33 Ark. 727; Wallace v. Swepston, 74 Ark. 520. (10) By its final decree the circuit court assumes to adjudge issues not made by the pleadings, and property rights not within its jurisdiction, in this suit; and, therein and thereby deprives the plaintiff of his property without due process of law in violation of Sec. 30, Art. 2, of the Constitution of Missouri, and Sec. 1, Art. 14, of the Amendment to the Constitution of the United States. Riggs v. Price, 277 Mo. 355; Davidson v. Davidson Co., 249 Mo. 474; In re Est. of Connor, 254 Mo. 75; Reed v. Bott, 100 Mo. 62; Ross v. Ross, 81 Mo. 84; Newham v. Kenton, 79 Mo. 382; Armour v. Frey, 253 Mo. 447; Carlisle v. Mulheim, 19 Mo. 56; Mathews v. Hunter, 67 Mo. 293; Priest v. Chouteau, 85 Mo. 406; Troll v. St. Louis, 257 Mo. 669; Shearer v. Paine, 12 Allen (Mass.) 289; 1 Rowley, Mod. Law of Partn. sec. 598; 2 Rowley, Mod. Law of Partn. sec. 626; Dyer v. Clark, 5 Met. 562; Bispham's Prin, of Eq. (9 Ed.) sec. 511; 20 R. C. L. secs. 273, 274; 22 Am. & Eng. Ency. Law, 95. (11) The appointment of a receiver in the final decree is an unwarranted...