In re Flynn's Estate

• Decision Date: 27 March 1935
• Docket Number: 25374.
• Citation: 43 P.2d 8,181 Wash. 254
• Court: Washington Supreme Court
• Parties: In re FLYNN'S ESTATE. v. FLYNN. MULROY

43 P.2d 8

181 Wash. 254

In re FLYNN'S ESTATE.

MULROY v. FLYNN.

No. 25374.

Supreme Court of Washington

March 27, 1935

Department 2.

Appeal from Superior Court, King County; James T. Ronald, Judge.

Proceeding by Pearl I. Flynn, administratrix of the estate of Walter Martin Flynn, deceased, for probate of deceased's will and final accounting, to which James G. Mulroy, as assignee of Cantor & Angel, Inc., filed objections, and action in equity by the objector against the administratrix for an accounting. From a decree approving the administratrix' final account as corrected, making allowances for services and ordering distribution, the objector appeals.

Affirmed.

L. C Brodbeck, of Olympia, and James G. Mulroy, of Seattle, for appellant.

John F Reed and W. M. Charleston, both of Seattle, for respondent.

STEINERT Justice.

An action in equity for an accounting by the administratrix of a partnership estate and also of an individual estate was consolidated with a probate proceeding, wherein objections to the final account of the administratrix were filed. An accounting was allowed and had upon the objections filed in the probate proceeding. After evidence had been taken, findings of fact were made, from which certain conclusions of law were drawn. Based thereon, a decree was entered approving the final account as corrected, making certain allowances for services rendered, and ordering distribution of the remainder of the partnership estate. Deeming himself aggrieved, the plaintiff in the equity action, who was also the objector in the probate proceeding has appealed from the decree, bringing to this court a formal transcript of the record, but not including a statement of facts.

By his assignments of error, the appellant makes but one contention; namely, that the findings of fact do not support the conclusions of law or the decree of distribution.

This being an action and proceeding to obtain an accounting of partnership assets, it is of equitable cognizance, and, as such, is triable de novo in this court. Mulready v. Shelton, 140 Wash. 233, 248 P. 416.

An approach to the question presented upon this appeal must be had with certain well-established rules in mind: (1) In equity cases, triable de novo, findings of fact, though permissible, are not essential or necessary to support a decree; (2) in such cases, the decree is entitled to every presumption necessary to sustain it, in the absence of an affirmative showing in the findings that the facts necessary to sustain the decree do not exist; (3) even though the findings are indefinite, uncertain, and incomplete, a decree presumably based upon facts not disclosed by the record cannot be reversed when the evidence is not brought Before the reviewing court. These rules are amply supported by the following cases: Thompson v. Emerson, 55 Wash. 138, 104 P. 201; Harbican v. Chamberlin, 82 Wash. 556, 144 P. 717; Smith v. Demend Brothers Co., 100 Wash. 139, 170 P. 555; Rich v. Kruger, 130 Wash. 656, 228 P. 1012; Wilkeson v. Rector, etc., St. Luke's Parish, 176 Wash. 377, 29 P.2d 748; Incorporated Investors v. Bridges (Wash.) 34 P.2d 881. As already stated, there is no statement of facts in the record Before us.

Turning, then, to the findings made by the trial court, we give their substance, as follows: In November, 1928, Walter Martin Flynn, of Seattle, and Cantor & Angel, Inc., a corporation, of New York City, entered into a partnership agreement to engage in the business of buying, selling, and dealing in raw furs in the city of Seattle. For this enterprise Cantor & Angel, Inc., advanced the sum of $10,000, and Flynn advanced the sum of $1,117.91. Flynn was made the sole and exclusive manager of the partnership, and, as such, conducted its business and had in his possession and control all of its property assets. Cantor & Angel, Inc., remained at all times merely a dormant partner.

The partnership agreement continued until dissolved by the copartners on October 31, 1930, at which time Flynn was overdrawn upon his account in the sum of $1,549.74, but at the same time there was owing to him a year's salary amounting to $3,600. The assets of the partnership at that time consisted of cash, accounts receivable, and a quantity of raw furs. These furs had been pledged to Seattle Fur Exchange to secure advances made by it and then totaling $7,360.18, which, together with other claims amounting to $253.99, were the only obligations owing by the partnership at that time. No notice of dissolution was given to any person who had previously dealt with the copartnership.

After the termination of the partnership agreement, Flynn retained the exclusive possession and control of all the assets of the copartnership, for the purpose of winding up, liquidating, and settling its affairs. At the same time, and without any break in the continuity of the business, Flynn engaged in and carried on, for his own account, the same kind of business, conducting it under the same name and in the same manner as those in which he had formerly conducted the business of the copartnership.

In the process of winding up the partnership affairs, Flynn sold a portion of the raw furs on hand, but under pledge, for the sum of $4,474.10, and thereby reduced the indebtedness of the copartnership to Seattle Fur Exchange to $2,886.08.

During November and December, 1930, while Flynn was engaged in business solely for himself, but while also winding up the affairs of the copartnership, he purchased other furs from various parties with whom the copartnership had formerly dealt, and became indebted to such parties for the purchases made by him. None of those parties were ever advised of the dissolution of the partnership, nor, for that matter, does it appear that they ever knew of its existence.

Mr. Flynn died intestate in December, 1930, and shortly thereafter his widow, the respondent herein, was appointed, and qualified, as administratrix of both the individual estate and the partnership estate, and took over possession of all the assets of both estates. Notice to creditors of the individual estate only was given. In due course of time the administratrix filed her final account, which showed the following: The balance remaining in the partnership estate, after allowing Mr. Flynn a credit of $300 for services rendered and expenses incurred by him in the work of winding up the partnership, amounted to $4,302.65; the balance remaining in the individual estate amounted to $737.39; or a total in both of $5,040.04. Claims totaling $3,541.19 were filed, allowed, and paid. Of this amount, $3,019.69 was for debts contracted by Mr. Flynn in the purchase of furs after the partnership had been dissolved. By the payment of all claims, the individual estate was exhausted and there remained of the partnership estate only $1,192.70. The administratrix was allowed the sum of $400 for her services and her attorney was allowed the sum of $500 for his. Deducting the amount of these allowances from $1,192.70, there was left the sum of $292.70, which was ordered to be paid to the appellant, who was the assignee of Cantor & Angel, Inc.

It is first contended by the appellant that the court had no right to approve the payment of any part of the individual debts out of the partnership assets.

Upon this contention appellant advances several prop...