Holman v. Nance

• Decision Date: 31 October 1884
• Citation: 84 Mo. 674
• Parties: HOLMAN, Administrator, Plaintiff in Error, v. NANCE et al.
• Court: Missouri Supreme Court

84 Mo. 674

HOLMAN, Administrator, Plaintiff in Error,

v.NANCE et al.

Supreme Court of Missouri.

October Term, 1884.

Error to Cooper Circuit Court.--HON. E. L. EDWARDS, Judge.

REVERSED.

Cosgrove, Johnston & Pigott for plaintiff in error.

(1) The plaintiff, as the administrator of Frank S. Bradley, had the right to dispose of the interest of the deceased in the partnership. 2 Williams on Executors, p. 1006. (2) An executor or administrator can settle or compound a debt due the estate, and without any order or direction from the probate court to do so. 3 Williams on Executors, top page 1900; 13 New Hampshire, 18 and 20; Chadbourn v. Chadbourn, 9 Allen 173; Coffin v. Cattle, 4 Pick. 454; Bean v. Farrum, 6 Pick. 269; Baconv. Crandon, 15 Pick. 79. (3) The plaintiff does not seek to recover a part of the partnership assets, but an amount due from the surviving partners upon a settlement and account stated by them with plaintiff.

Draffen & Williams and John R. Walker for defendants in error.

(1) The statute has pointed out the method of settling partnership estates upon the death of one of the partners. The petition sets up an agreement made out of court within thirty days after Bradley's death, and does not state a cause of action. Ensworth v. Curd, 68 Mo. 282; Titterington v. Hooker, 58 Mo. 593. (2) The individual administrator, as such, has no control over the partnership funds, or any part thereof. If, upon failure of the survivor to give the required bond, such administrator also takes charge of the partnership estate, he acts in two separate capacities. Unless he gives the bond and administers upon the partnership estate, he has no control over any of the partnership effects whatever. Orrick v. Vahey, 49 Mo. 428; Weil v. Jones, 70 Mo. 560; Burton v. Rutherford, 49 Mo. 255; Bredow v. Mutual Savings Institution, 28 Mo. 181. The plaintiff in this case, seeks to recover a portion of the partnership assets. The only title he shows in his petition is his letters of administration upon Bradley's estate. (3) It is not stated in the petition that all the partnership debts were paid, nor in what the assets consisted, nor in whose hands they were. (4) The first point relied upon by the plaintiff in error for a reversal, and the authorities cited in support of the same, are inapplicable to this case. (5) The second point made in plaintiff's brief has no bearing upon the questions arising upon this record. The defendants did not owe the plaintiff's intestate any debt, and no such debt was compounded and settled by the plaintiff. The right of an administrator to compound a debt due to the deceased is not involved in this suit. No such case is made in the pleadings.

MARTIN, C.

This is an action by the administrator of the individual estate of a deceased partner, to recover from the surviving partners, an amount ascertained to be due the intestate, upon a settlement of the partnership estate. It is alleged in the petition that Frank S. Bradley, the intestate, was in his lifetime a member of the firm of Nance, Combs & Company, which was composed of the defendants, and said Bradley, and that the said partners, under said name and style, were engaged in the business of buying and feeding hogs and cattle for market. It is further alleged that after his qualification as administrator of Bradley, the plaintiff had a settlement with the defendants, as surviving partners of the firm of Nance, Combs & Company, of the partnership affairs of said firm, by which settlement it was ascertained that the interest of said Bradley in said partnership amounted to the sum of eighteen hundred dollars, of which said sum the said defendants, then and there, paid to plaintiff as administrator as aforesaid, the sum of three hundred and fifty dollars. It is next alleged that the sum of $1,450 was paid by them to one Walker, who was an individual creditor of said Bradley to that amount, evidenced by note of said Bradley, when it should have been paid to plaintiff as administrator of the individual estate. Judgment for said $1,450 is prayed.

To this petition a demurrer was interposed, assigning as grounds therefor, that the facts stated failed to show any liability to plaintiff on the part of defendants; that the administrator of the individual estate of Bradley had no right to the assets of the firm, and no control over the deceased partner's interest therein, and could make no valid and binding settlement of the partnership estate without administering upon the same in the manner pointed out in the statute; that the partnership estate could only be settled and the interest of the deceased therein ascertained by the method directed in the statute as to partnership estates and the settlement thereof; and that the...