McKinnon v. McKinnon, 97.

• Decision Date: 29 May 1893
• Docket Number: 97.
• Citation: 56 F. 409
• Parties: McKINNON v. McKINNON et al.
• Court: U.S. Court of Appeals — Eighth Circuit

56 F. 409

McKINNON v. McKINNON et al.

No. 97.

United States Court of Appeals, Eighth Circuit.

May 29, 1893

Statement by THAYER, District Judge:

This was a bill which was filed by the appellant in the circuit court for the western district of Missouri to restrain the appellees from prosecuting a certain ejectment suit, and to specifically enforce a covenant contained in a copartnership agreement that was entered into by the appellant and Malcolm McKinnon on the 1st of January, 1884. The partnership articles in which the covenant is contained are as follows the provision which the appellant seeks to enforce being indicated by italics 'We, the undersigned, Malcolm McKinnon and John A McKinnon, of the town of Maysville, De Kalb Co., Mo., do this first day of January, 1884, agree to enter into partnership for the purpose of practicing the arts of medicine and surgery in the town of Maysville and vicinity, from the first day of January, 1884, until the first day of January 1890, inclusive. We hereby agree to share the profits accruing from the practice of our profession equally, and to bear equally all expenses and losses incident to the same. We also agree to do all we reasonably can to advance the interests of the firm until the term of partnership expires, at which time we will, if mutually agreed, or at the request of any one of the firm, take account of stock and all profits in money or in any other property of which we are in possession, and, after deducting therefrom all expenses of the firm, and allowing for the difference in stock furnished at the commencement of the partnership, equally divide all profits which we will consider due to ourselves, our heirs or executors. And the junior member of the firm (J. A. McKinnon) agrees to relinquish all claims at the end of the term of partnership, or at any time after dissolution of the same, to the further practice of his profession in the town of Maysville and vicinity, unless it is mutually agreed upon to further continue in the partnership, or unless it is the with of the senior member of the firm (M. McKinnon) that the junior member of the firm (J. A. McKinnon) should continue the practice of his profession unconnected with him, in which case the said J. A. McKinnon shall have full privilege to conduct the practice of his profession without any conditions in the town of Maysville and vicinity. And it is further agreed upon that, should the senior member of the firm die or become incapable of practicing his profession, that the right to continue in the business should devolve on the junior member, (J. A. McKinnon,) and, in the event of the death of the senior member of the firm, that all his properly, personal and otherwise, which he held in partnership at the time of his death, should go to the junior partner, J. A. McKinnon, provided the senior member leaves no family of his own to which it might recur. And it is also agreed upon that, should the junior partner (J. A. McKinnon) die before the termination of the partnership, that his share of the partnership property be administered upon according to his expressed wishes, or, in the absence of that, according to the wishes of the senior member, (M. McKinnon,) providing J. A. McKinnon leaves no family of his own to inherit his property. To the faithful performance of the foregoing conditions in our articles of partnership, we, each of us, pledge ourselves, as witness our signatures, this first day of January, 1884.

'M. McKinnon, Senior Member.

'J. A. McKinnon.'

The circumstances which preceded and gave rise to the controversy are as follows: Malcolm McKinnon, who signed the foregoing articles, was a physician, who had resided and practiced his profession at Maysville, De Kalb county, Mo., for some years prior to his death. At the time of his death, which occurred in May, 1886, he was about 45 years of age, and had never been married. He left surviving him one sister and three brothers, who resided, respectively, on Prince Edward island, in Scotland, in Massachusetts, and in New Jersey. He had been separated from those who were of kin to him for about 20 years before his decease. In the month of November, 1881, the appellant came from Lowell, Mass., to Maysville, Mo., and shortly thereafter became associated with Dr. Malcolm McKinnon, who was his uncle, in the practice of medicine and surgery. The relation of partnership, which appears to have been definitely formed as early as January 1, 1882, continued without interruption or difficulties of any sort until the death of the uncle, in the year 1886. During that period most of the hard work incident to the practice is said to have been done by the nephew. The nephew claims, and there is no evidence to the contrary, that he abandoned a position which he held as physician in the Lowell Dispensary, and came to Missouri, at the urgent solicitation of his uncle, who represented to him 'that he was overcrowded with work, and that, if he would come, he would make him his partner, and make is an object for him to come.' The partnership articles above set forth were drawn by Dr. Malcolm McKinnon with his own hand, and were executed by himself and by his nephew, at the instance of the former, on the day they bear date; but the partnership relation had existed for two years previously, under an oral agreement, which, as it is claimed by the appellant, was substantially the same as that expressed by the written articles. When the partnership was formed, in the fall of 1881, or January, 1882, the elder Dr. McKinnon owned a small house and lot in the village of Maysville, Mo., where he resided and kept his office, which piece of property is hereafter referred to as the 'Residence Property.' He had at the time three horses and two vehicles, about $1,000 in money, and some outstanding accounts. During the spring, summer, and autumn of the year 1882, several parcels of land, amounting to 280 acres, were purchased, which land is hereafter spoken of as the 'Watts Farm,' and in 1886 was worth about five or six thousand dollars. The title to the land thus purchased was taken in the name of the uncle. In March, 1885, four lots of land were purchased in the village of Maysville, Mo., for $2,500, the title to which was also taken in the name of the uncle. The latter property is hereafter referred to as the 'Meyer Lots.' The title to these three pieces of property remained in Dr. Malcolm McKinnon at the time of his death. After his death, the appellees, who are a brother and sister of the deceased, brought an action of ejectment against the appellant to recover the three parcels of real estate in question, whereupon the appellant filed the present bill, to enjoin the prosecution of the ejectment suit, and to specifically enforce his right of survivorship, claiming that said property was 'held in partnership' where his uncle died, and that he became entitled to it under the partnership articles. The circuit court, on final hearing, dismissed the bill. The opinion of the circuit court is reported in 46 F. 713.

Stephen S. Brown, for appellant.

Willard P. Hall and Vinton Pike, for appellees.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.

THAYER District Judge, (after stating the case.)

The action of the circuit court in dismissing the bill was made to turn largely, if not entirely, on the following findings of law and fact:

First. That the clause in the partnership articles of date January 1, 1884, which provided that, in the event of the death of the senior member, 'all his property, personal and otherwise, which he held in partnership at the time of his death, should go to the junior partner,' was a mere testamentary disposition, and void, because not executed in conformity with the Missouri statute concerning wills.

Second. That the clause in the partnership articles last referred to was in any event a mere gratuity, which rested upon no consideration, and for that reason would not be enforced in equity. And

Third. That while the evidence showed that a part of the realty described in the bill was acquired during the existence of the partnership, and was paid for in part with partnership funds, yet that the evidence failed to show that any of said real estate was 'held in partnership' at the time of Malcolm McKinnon's death.

It will be convenient to consider these several propositions in the order last stated. There are many cases to be found in the books, some of which have been called to our attention, and are evidently relied upon in the present case, where an instrument which was intended by the grantor to be a conveyance was held not to be operative as such, because it did not pass any present interest, and to be void as a will because not executed in conformity with the statute of wills. Hester's Ex'r v. Young, 2 Ga. 31; Turner v. Scott, 51 Pa. St. 126; Roth v. Michalis, 125 Ill. 325, 17 N. E. Rep. 809; University v. Barrett, 22 Iowa, 73. The distinction between a deed and a will is elementary, and is well understood. The former must pass a present interest, although the right to possession and enjoyment may not accrue until some future time; whereas an instrument which does not pass any interest until after the death of the maker is essentially a will, and must be executed with all due formalities. But we fail to see that these authorities, or the principles which they enunciate, have any proper application to the case at bar. The partnership articles involved in the present controversy were neither intended as a deed or a will. They constitute an executory agreement, which determines the rights of the parties inter se, and provides what disposition shall be made of the partnership property on the happening of a certain event. In the state of...