Moffett v. Moffett

• Decision Date: 08 November 1930
• Docket Number: 29,807
• Citation: 131 Kan. 582,292 P. 947
• Parties: THOMAS S. MOFFETT, Appellant, v. HELEN MOFFETT, the COMMERCE TRUST COMPANY, Executor de bonis non of the Will and Estate of John Moffett, Deceased, and the COMMERCE TRUST COMPANY, Administrator of the Partnership Estate of Moffett Brothers et al., Appellees
• Court: Kansas Supreme Court

292 P. 947

131 Kan. 582

THOMAS S. MOFFETT, Appellant, v. HELEN MOFFETT, the COMMERCE TRUST COMPANY, Executor de bonis non of the Will and Estate of John Moffett, Deceased, and the COMMERCE TRUST COMPANY, Administrator of the Partnership Estate of Moffett Brothers et al., Appellees

No. 29,807

Supreme Court of Kansas

November 8, 1930

Decided July, 1930.

Appeal from Harper district court; GEORGE L. HAY, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PARTNERSHIPS--Death of Partner--Right of Widow to Accounting--Partition and Conversion of Firm Real Estate. Two brothers were for many years partners in the live-stock and farming business, and purchased, with partnership funds, real property which was used in the business. The partnership was terminated by the death of one of them. Partnership debts to general creditors were paid. The surviving partner brought an action to partition the partnership real property, claiming a one-half interest in it by reason of his interest in the partnership. The widow of the deceased partner, who took under the law, by answer and cross petition alleged that the partnership was indebted to the deceased partner, that the surviving partner was indebted to the partnership, and that another partnership, composed of the deceased, plaintiff and two others who were beneficiaries under the will of the deceased, was indebted to the partnership, and asked for an accounting of this indebtedness to determine the interests of the parties in the real property sought to be partitioned. Held, such an accounting was proper.

2. SAME--Partition of Firm Real Estate--Parties. In a partition action, mentioned in syllabus 1, the administrator of the partnership estate and the executor de bonis non of the estate of the deceased partner intervened to have adjudicated the indebtedness between the parties for the determination of the interests of the parties in the property sought to be partitioned. Held, that it was proper to permit them to intervene.

E. C Wilcox, of Anthony, A. E. Watson and Martin J. O'Donnell, both of Kansas City, Mo., for the appellant.

B. C. Howard, of Kansas City, Mo., for appellee Commerce Trust Company; Orlin A. Weede, of Kansas City, Mo., for appellee Helen Moffett.

OPINION

HARVEY, J.:

Plaintiff has appealed from an order of the court overruling his demurrer to the answer of the defendant, Helen Moffett, also from an order of the court permitting the Commerce Trust Company to interplead.

Plaintiff in his petition alleged that for many years he and his brother, John Moffett, were equal copartners, under the firm name of Moffett Brothers, engaged in the live-stock and farming business and in the purchase and ownership of lands used in connection with that business, the title to the land being taken, sometimes in the name of the partnership, at other times in the name of one or the other of the members of the firm; that both of the partners resided at Kansas City, Mo., where the principal office of the partnership was located; that some of the partnership lands were situated in Kansas, where they were operated in connection with the partnership business; that the partnership was dissolved August 23, 1927, by the death of John Moffett; that the real property described in the petition, situated in Harper, Anderson, Pratt, Barber and Comanche counties, Kansas, was acquired and purchased with partnership funds and used in connection with the partnership business; that by reason of plaintiff's interest in the partnership he was the owner of an undivided one-half interest in the land; that on the death of John Moffett he left surviving him his widow, Helen Moffett, but no children; that the widow had elected, both in Missouri and in Kansas, to take under the law; that John Moffett left a will under the terms of which, as construed in plaintiff's petition, plaintiff was the beneficiary to the extent of 7/144 of the property of which John Moffett died seized; that by reason of his partnership interest in the property and his interest as beneficiary under the will of his brother, plaintiff was the owner of 79/144 of the real property described in the petition; that the defendant, Helen Moffett, was the owner of an undivided one-fourth of the property, and that brothers and sisters of John Moffett, other than plaintiff, living at the time of his death were the owners respectively of an undivided 7/144 of the property; and that all debts of the partnership, owing to general creditors, had been paid. The widow of John Moffett, his brothers and sisters, other than plaintiff, and others who might claim an interest in the property, were named as defendants. The prayer was that the respective interests of the parties be adjudicated and determined, and that the real property be partitioned.

The defendant, Helen Moffett, answered, admitting she was the widow of John Moffett, deceased; that she had elected to take under the law; that plaintiff and John Moffett for many years prior to his death were partners under the name of Moffett Brothers; that the real property in controversy had been purchased by partnership funds and used in the partnership business, and that partnership debts owing to general creditors had been paid; but alleged that the partnership was in debt to John Moffett in a large amount, and that the plaintiff was indebted to the partnership in a substantial sum; and further alleged that prior to the death of her husband there was a partnership composed of her husband, the plaintiff in this action and two other brothers, doing business under the name of Moffett Brothers Cattle, Land and Lumber Company, which partnership was indebted to Moffett Brothers in a substantial sum, and the defendant, Helen Moffett, in her answer prayed that before the land described in the petition should be partitioned an accounting should be had so as to determine her share or interest, as well as that of the plaintiff and other defendants, in the property sought to be partitioned.

The Commerce Trust Company of Kansas City, Mo., having previously been duly appointed executor de bonis non of the will of John Moffett, deceased, and also as administrator of the partnership estate of Moffett Brothers in its two respective capacities, made application to be permitted to intervene and allege facts much as were alleged in the answer of Helen Moffett as to why there should be an accounting prior to the partition of the real property in controversy. These applications to intervene were allowed. It would seem the order allowing these applications is not appealable (Wagstaff v. Wagstaff, 67 Kan. 832, 72 P. 780; Howard v. Bank, 107 Kan. 489, 192 P. 746; 3 C. J. 493), while an order denying them might have been ( Ousley v. Osage City, 95 Kan. 254, 147 P. 1110). But we pass that question, since it is not specifically raised.

While we do not deem it important to the question presented, we are told in the briefs and arguments that the members of the partnership firm of Moffett Brothers Cattle, Land and Lumber Company, other than plaintiff and John Moffett, deceased, have filed answers in which they ask for an accounting prior to the partition of the real property in controversy.

Speaking broadly, the question presented is whether there can be, or should be, an accounting as between the members of the partnership of Moffett Brothers and of the alleged indebtedness of plaintiff, and of the Moffett Brothers Cattle, Land and Lumber Company, before there is actual partition of the real property in question. In the argument counsel have separated the question, broadly stated as above, into several points, but we deem it unnecessary to dissect it very much. Appellant alleged in his petition, and the appellees concede in their answer and application to intervene, that the real property sought to be partitioned was purchased with partnership funds of Moffett Brothers and used in the partnership business, and that obligations owing to general creditors have been paid.

Appellant contends that because he was an equal partner with John Moffett in the business of Moffett Brothers he is an owner of an undivided one-half of the real property in controversy. Appellees contend that notwithstanding the fact that plaintiff was an equal copartner in the firm of Moffett Brothers...