Pullis v. Pullis

• Decision Date: 23 December 1903
• Citation: 77 S.W. 753,178 Mo. 683
• Parties: PULLIS et al. v. PULLIS et al.
• Court: Missouri Supreme Court

77 S.W. 753

178 Mo. 683

PULLIS et al. v. PULLIS et al.

Supreme Court of Missouri, Division No. 1.

December 23, 1903.

PARTNERSHIP ASSETS—ACTION FOR SHARE OF DECEASED PARTNER.

1. The heirs at law of a deceased member of a partnership may not sue for his share of an unadministered asset of the firm, but the administrator of the partnership, or, he being dead, its administrator de bonis non, must sue for the asset.

Appeal from St. Louis Circuit Court; Wm. Zachritz, Judge.

Action by Kate Pullis and others against Thomas R. Pullis and others. Judgment for defendants. Plaintiffs appeal. Affirmed.

James G. Owen and McKeag & Cummings, for appellants. Henry Boemler and Harmon J. Bliss, for respondents.

BRACE, P. J.

This is an appeal from a judgment of the St. Louis city circuit court sustaining demurrers to the plaintiffs' amended petition, filed February 16, 1901, and, which omitting caption, is as follows: "Plaintiffs, by their amended petition, leave of court first had and obtained, for their cause of action state that the Oak Hill Cemetery Association is now, and was at the time hereinafter stated, a stock corporation duly incorporated under the laws of the state of Missouri, having its chief office or place of business in the said city of St. Louis; that the defendants Merrit H. Marshall, Sr., Nathan D. Allen, and A. S. Mermod claim to have an interest in the shares of stock which were wrongfully and fraudulently issued for no other consideration than the surrender of certificate No. 11, hereinafter mentioned, by intermediate surrenders and cancellations, all of which are involved in the controversy in this case; that the plaintiffs are the only heirs at law of Theodore Pullis, deceased, who departed this life on or about the 2d day of January, 1884, intestate; that Augustus Pullis administered on the estate of said deceased in the probate court of the city of St. Louis, and finally settled said estate on or about the 28th day of September, 1892; that at the time of his death the said Theodore Pullis was a member of the firm of Pullis Bros., a copartnership composed of Augustus Pullis, Theodore Pullis, and Thomas R. Pullis, Jr., the interest of each being one undivided one-third of all the assets and property of said firm; that Augustus Pullis, as surviving partner, administered on the copartnership estate of Pullis Bros., and finally settled said copartnership estate on or about the 26th day of October, 1889; that during the life of Theodore Pullis, on or about the 2d day of January, 1882, the said Pullis Bros. became the owners of the entire estate of T. R. Pullis & Sons in the Oak Hill Cemetery Association, which was represented by one hundred and sixty (160) shares of the capital stock of the said association, and evidenced by certificate No. 11, of the then value of fifty dollars per share, and at the time of the death of Theodore Pullis said shares of stock then appeared on the books of the said corporation having been previously issued on June 17, 1879, in the name of T. R. Pullis & Sons, a copartnership in which the said members of the copartnership of Pullis Bros. had been all interested prior to the death of T. R. Pullis, Sr., that afterwards, on the 9th day of December, 1893, said corporation issued a stock certificate to Pullis Bros. for one hundred and sixty (160) shares of its capital stock, which was at the time numbered 18; that previous to issue of said certificate No. 18, on or about the 2d day of January, 1882, the said copartnership of T. R. Pullis & Sons was by mutual consent dissolved, and the said firm of Pullis Bros., for value received, became the entire owner of said one hundred and sixty (160) shares of said corporation, and continued to be up to the time of the death of said Theodore Pullis, deceased. Plaintiffs further state that the said Augustus Pullis, now deceased, did not either in the estate of Pullis Bros. or in the estate of Theodore Pullis, deceased, inventory nor administer on said shares of stock, or in any manner ever account to the plaintiffs for their interest in said shares of stock; that Thomas R. Pullis, Jr., of the defendants, well knew of all of these facts, and after the final settlement of the said estate of said Theodore Pullis, deceased, the said Thomas R. Pullis, of the defendants, and the said Augustus Pullis, deceased, surreptitiously concealed the existence of the interest of the said Theodore Pullis, deceased, from the plaintiffs in and to the shares of stock, and did, on the 9th day of December, 1893, surrender to the said corporation said certificate No. 11, and had the corporation cancel said certificate and issue a certificate in the name of Pullis Bros., which was said No. 18, for the said one hundred and sixty (160) shares. Plaintiffs...