Hartnett v. Fegan

• Court: Missouri Court of Appeals
• Writing for the Court: LEWIS, J.
• Citation: Hartnett v. Fegan, 3 Mo. App. 1 (Mo. App. 1876)
• Decision Date: 03 July 1876
• Parties: MICHAEL J. HARTNETT, Administrator of ANTHONY FEGAN, Respondent, v. BERNARD FEGAN, Surviving Partner of BERNARD and ANTHONY FEGAN, Appellant.

3 Mo.App. 1

MICHAEL J. HARTNETT, Administrator of ANTHONY FEGAN, Respondent, v. BERNARD FEGAN, Surviving Partner of BERNARD and ANTHONY FEGAN, Appellant.

Court of Appeals of Missouri, St. Louis.

July 3, 1876

1. An administrator has no interest in the real estate of his intestate beyond a naked power to sell or lease, under direction of the Probate Court, for the payment of debts. But, if he leases the land without proper authority, the rents received will be as sets in his hands.

2. A surviving partner administering the partnership effects occupies a two-fold relation to the realty belonging to the partnership estate: first, as a trustee, holding the beneficial interest for payment of the partnership debts and, second, as co-tenant with the heir of the deceased partner, holding the title subject to the trust. In the first capacity he must account for all receipts and disbursements in his settlements before the Probate Court. In the second the Probate Court has no jurisdiction over him. If therefore, he leases the land under order of the Probate Court, or there be partnership debts unpaid for which the personal assets are insufficient, the surviving partner must account in his settlements for rents received. But, if he leases without such order, and the rents are not required for the partnership debts, his accounting will be with the heir only. If the share of the deceased partner be required for payment of his individual debts, his administrator may interpose against the heir, and incorporate such share with the assets of the estate in his hands.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

Dailey & Adams, for appellant, cited: Buchanan v. Sumner, 2 Barb. 198-207; Buckley v. Buckley, 11 Barb. 65-75; Yeatman v. Woody, 6 Yerg. 20; Piper v. Smith, 1 Head 93; Foster's Appeal, 74 Pa.St. 391; note to this case in 13 Am. Law Reg. 300; Wilcox v. Wilcox, 13 Allen 252; Carlisle v. Mulhern, 19 Mo. 56; Duhring v. Duhring, 20 Mo. 174; 1 Pars. on Con., side pages 149-153; 3 Kent's Com., side pages 37-40, and notes; 1 Washb. on Real Prop., book 1, ch. 13, sec. 4, pp. 422, 423; Story on Part. 372 et seq., and notes; Goodbunn v. Stevens, 5 Gill 27; Burdyne v. Mackey, 7 Mo. 374; Aubuchon v. Lang, 23 Mo. 99; Buffum v. Buffum, 49 Me. 108; Scruggs v. Blain, 44 Miss. 406.

Farish & Griffin, for respondent, cited: Belle Fisher, Am. Law Reg. 300; Pars. on Part., ch. 11, secs. 360-366.

OPINION

LEWIS J.

Bernard Fegan and Anthony Fegan were copartners, and occupied a tract of land which they owned and cultivated as partnership property. In 1871 Anthony died, and Bernard, as survivor, undertook the administration of the partnership effects. Hartnett, the respondent, administered on the separate estate of the deceased partner. In June, 1874, the surviving partner made his final settlement in the St. Louis Probate Court, showing a balance in his hands of $597.69. To this settlement the respondent filed exceptions, alleging that the surviving partner had failed to account for rental of the real estate; that he had occupied the land for two years under an agreement with the respondent to pay rent at the rate of $1,000 per annum. The Probate Court, upon a hearing of the proofs, allowed the exceptions, and charged the surviving partner with an additional sum of $1,563.01. Upon appeal to the Circuit Court, and a hearing de novo, the exceptions were again allowed, and the balance against the surviving partner ascertained at $1,512.69.

It appears that the debts of the partnership were all paid out of the personal effects of the concern, and that there were no debts existing against the separate estate of the decedent. The only question to be determined is whether, under the circumstances, the surviving partner was bound to account in his settlement for rents of the realty. The court below properly excluded from consideration the alleged agreement.

An administrator, as such, has no interest in the real estate of his intestate beyond a naked power to sell or lease, under direction of the Probate Court, for the payment of debts. If he leases the land without authority from the court, the rents received will be, nevertheless, assets in his hands, as was held in Gamage v. Bushell, 1 Mo.App. 416. This is because the money comes to him by virtue of no right but that which he holds as administrator, and he cannot allege his own wrong in failing to obtain the proper authority, as a reason for converting it to his own use. He must, therefore, account in his settlements for rents received, whether with or without the direction of the Probate Court.

A surviving partner administering the partnership effects stands upon the same footing as to the partnership land, with this difference: he may make a lease as surviving partner administering, etc., or he may do so as tenant in common with the heir of the deceased partner. The question, in which capacity the leasing is done, must be determined by the circumstances.

In Carlisle's Administrators v. Mulhern, 19 Mo. 58 it is stated, as...