Green's Adm'r v. Virden

• Decision Date: 31 March 1856
• Citation: 22 Mo. 506
• Parties: GREEN'S ADMINISTRATOR, Defendant in Error, v. VIRDEN AND OTHERS, Plaintiffs in Error.
• Court: Missouri Supreme Court

22 Mo. 506

GREEN'S ADMINISTRATOR, Defendant in Error,

v.VIRDEN AND OTHERS, Plaintiffs in Error.

Supreme Court of Missouri.

March Term, 1856.

1. Where, in a case of the death of one of two partners, the survivor gives the bond required by the 50th and 51st sections of the first article of the administration act (R. C. 1845, p. 70), with approved securities; held, that such survivor can not be removed by the probate court and deprived of his right to the control and management of the partnership effects, on the ground that he has, since the giving of the bond,become a non-resident of the state.

Error to St. Charles Circuit Court.

James Green was, in his life-time, a partner with Virden, plaintiff in error, in a saw-mill. After Green's decease, letters of administration on his estate, bearing date April 6th, 1853, were granted to Robert H. Parks, defendant in error. Virden, July 11th, 1853, gave bond as surviving partner of the firm, in pursuance of § 51 of article 1 of the administration act of 1845, and entered upon the management of the effects of the partnership, and sold the mill and its appurtenances for $1600. The county court of St. Charles county, April 5th, 1854, revoked the letters which had been granted to Virden as surviving partner, because he had ceased to be a resident of the state of Missouri, and on the 28th of September, 1854, granted letters de bonis non on the partnership effects to Parks, defendant in error. The said Parks instituted this suit October 11, 1854, against Virden and his securities, to recover $1600 received by Virden from the sale of the mill. The breaches of the bond assigned were that Virden had not used due diligence and fidelity in closing the affairs of the partnership; that he had not applied the property thereof towards the payment of the debts of the partnership; that he had not paid over to the plaintiff, Parks, the partnership funds or property, and more particularly that he (Virden) had received $1600 belonging to the partnership of Green & Virden, and had not applied any part thereof to the payment of the debts of the firm, and that the debts of said firm are and remain unpaid; and, although said Virden's letters of administration on said partnership have long since been revoked, and plaintiff (Parks) has been appointed and qualified administrator de bonis non thereof, yet defendant (Virden) has not yet paid and delivered to plaintiff the money, effects and property belonging to the said partnership of Green & Virden.

Virden, in his answer, denied that he had not used due diligence and fidelity in closing the affairs of the partnership, and that he had failed to apply the property or any part thereof towards the payment of the debts of the partnership, and claimed a set-off of $688 92 for moneys paid out by him on account of and for work and labor performed by him for the partnership, and about the partnership.

The court, on motion of plaintiff (Parks), struck out of the answer all that part of the answer which set up as off-set to plaintiff's demand the services performed by defendant (Virden) and his hands, wagons, teams, board of hands hired, and cash paid out for said firm, performed, furnished or paid prior to the death of James Green.

The cause was tried by the court sitting as a jury, and after making an allowance to defendant (Virden) for commission and for money paid out by him for the partnership, of the sum of $113 17, judgment was given for plaintiff for the sum of $1651 11.

C. D. Drake, for plaintiffs in error. The court erred in rendering judgment for the following reasons: 1. The defendant below has never ceased to be legally qualified for the “management” of the partnership effects. Having given bond therefor, as required by law, he was entitled to hold and manage those effects as surviving partner. 2. The county court of St. Charles county had no legal authority to “revoke his letters of administration,” because no letters of administration were ever legally granted to him; and because, if there had been, there is no law giving that court the power to make such a revocation, on the ground of the surviving partner having become a non-resident of the state.

Such a power can not properly be established by inference, which is the only way that the defendant in error seeks to establish it. If inference is to be resorted to, it is decidedly against the power, on the principle, expressio unius est exclusio alterius. The same law which regulates the obligations of surviving partners regulates the powers, rights, duties and obligations of executors and administrators. It declares that the letters of an executor or administrator shall be revoked, if he cease to reside in the state; but it does not declare that, if a surviving partner cease to reside there, he shall be discharged from the management of the partnership estate. Therefore, the principle above cited applies. But further, there is a most essential difference between an administrator and a surviving partner. The former is the mere creature of the law, administering an estate for the benefit of all parties interested in it, but having, as administrator, no interest in it. A surviving partner is, by the general law, the actual proprietor of the partnership effects; and he is required to give bond, simply to insure the application of those effects, first, to the payment of the partnership debts; and, secondly, to the payment of the deceased partner's share of the concern to his legal representatives. He has no functions to perform...