Gomez v. Higgins

• Decision Date: 05 June 1901
• Citation: 130 Ala. 493,30 So. 417
• Parties: GOMEZ ET AL. v. HIGGINS ET AL.
• Court: Alabama Supreme Court

30 So. 417

130 Ala. 493

GOMEZ ET AL. v. HIGGINS ET AL.

Supreme Court of Alabama

June 5, 1901

Appeal from chancery court, Mobile county; Thomas H. Smith Chancellor.

Bill by Alexander Gomez, Jr., and others against Robert P. Higgins individually and as administrator de bonis non of the estate of Francisco Gomez, deceased, and others, to wind up a partnership. From an order denying complainants' application for the appointment of a receiver, complainants appeal. Affirmed.

The facts averred in the bill were as follows: For many years prior to August 25, 1898, F. Gomez, Sr., had been carrying on a tinware shop and mercantile business in Mobile, Ala., at stores on the east side of Water street, second, third fourth, and fifth doors south from St. Louis street; that on the 25th of August, 1898, he and his son Alexander Gomez entered into written articles of co-partnership signed by both and attested by two witnesses, in which are the following provisions:

"(1) The firm name and style of said co-partnership shall be F Gomez & Son, and shall continue under this name until the death of F. Gomez, except in case of the death of Alexander Gomez.

"(2) The said Francisco Gomez contributes all his stock of tinware, machinery and all stock in trade, manufactured and otherwise, tools and everything of whatever nature or description pertaining to said business, together with the business itself, the same now being carried on by Francisco Gomez on the east side of Water street, 2d, 3d, 4th, and 5th south from St. Louis street, in the city of Mobile, state of Alabama.

"(3) The said Francisco Gomez also contributes to said business the following mortgages now on the records of Mobile county, which mortgages are all payable to the said Francisco Gomez, but hereafter to be a part of the assets of said business of F. Gomez & Son. [Then follows a particular description of each mortgage, 33 in all.]

"(4) The said F. Gomez also contributes the income and profits of all the real estate owned by him in the city and county of Mobile, state of Alabama, to the capital stock of said co-partnership.

"(5) The said F. Gomez in consideration of the love and affection he has for his son Alexander, and rewarding him for his many years of invaluable assistance in helping him to maintain and increase the business, bringing it up to its present standard, and the further consideration of the sum of one dollar, does hereby bargain, sell and convey an undivided one-half interest in and to said business and stock of goods, mortgages, and profits and income from rents, to the said Alexander Gomez, during his lifetime. The said Francisco Gomez and Alexander Gomez shall devote and give all their time and attention to the business of said firm. The said F. Gomez shall be general manager of the business and shall have full control of all credits, incomes and profits and the investment of the same during his lifetime. In the event of the death of F. Gomez, the entire business with all assets, profits, book accounts and money on hand shall become the property of Alexander Gomez during his lifetime, and at his death the said business, together with all assets, profits, book accounts, stock and money on hand shall be divided into three equal parts, as follows: One-third (1/3) to my daughter Florida Gomez, one-third (1/3) to my daughter Romanda Higgins, and one-third (1/3) to the heirs of the said Alexander Gomez."

The foregoing comprises the material parts of the contract. This contract is Exhibit A to the bill. Alexander Gomez accepted the conveyance and he and his father executed the contract and carried on said business thereunder until March 22, 1899, when the said F. Gomez, Sr., died; and thereupon said Alexander Gomez at once possessed himself of all said property and assets of said co-partnership and continued to carry on said business under said firm name of F. Gomez & Son until the 23d day of November, 1900, when he died. Alexander Gomez took out administration upon the estate of said F. Gomez, Sr. On January 6, 1900, Alexander Gomez, at the instance of Florida Gomez, executed a paper wherein he undertook to declare said co-partnership contract and conveyance "shall in all respects be treated as null, void and of no effect"; and that "I do hereby release, relinquish and forever quitclaim unto the said heirs at law of Francisco Gomez, Sr., *** all of the right, title and interest which I acquired or claim to have acquired by virtue of said instrument above described as articles of co-partnership, it being my intention that said property described in said articles of co-partnership, both personal and real, and which was the property of said Francisco Gomez, Sr., absolutely, prior to the alleged execution of said articles of co-partnership, shall descend and vest in the heirs at law of said Francisco Gomez, Sr., the same as if he had died intestate and without having executed said alleged instrument above described."

Notwithstanding the making of this paper said Alexander Gomez continued to carry on said business under said firm name of F. Gomez & Son until his death, November 23, 1900. Alexander Gomez had, on November 2, 1900, filed his accounts and vouchers in the probate court of Mobile county for a final settlement of his administration of the estate of F. Gomez, in which account he charged himself with this partnership property as assets of that estate, but no settlement thereof had been made at the time of his death. Florida Gomez and Romanda Higgins had not released their claim to said property and had declined to agree that the said accounts of said Alexander Gomez were correct, etc.

After the death of Alexander Gomez, the appellee Richard Pratt was appointed administrator of his estate, and appellee R. P Higgins was appointed administrator de bonis non of the estate of F. Gomez, Sr., and each had possession of some of said co-partnership property, pretending to claim that it belonged to the estates of their respective intestates; and that R. P. Higgins had applied to the probate court for an order to sell the same as property belonging to the estate of his intestate; that said Florida Gomez and Romanda Higgins had not taken possession of the property, and complainants being minors were not able...