(Division
B.)
1.
APPEAL AND ERROR.
Chancellor's
finding must stand unless against overwhelming weight of
evidence.
2
PARTNERSHIP.
In
final accounting administration of alleged partnership
estate, evidence held to sustain finding that partnership
existed.
3
PARTNERSHIP.
In
final accounting by administrator of partnership estate
evidence held to sustain finding that allowance of one
thousand, six hundred nine dollars out of deceased
partner's share for his funeral expenses was not
unreasonable.
4
PARTNERSHIP.
Advances
out of deceased partner's share of partnership assets for
his reasonable funeral expenses, made by surviving partner as
administrator of partnership estate, held chargeable against
widow's and heirs' share and not against partnership
assets.
5
PARTNERSHIP.
Expenses
of suits involving partnership's accounting including
fees of experts, accountants, auditors, and attorneys are
payable out of partnership assets.
6.
PARTNERSHIP.
Attorneys'
fees incurred by surviving partner in defending his right to
administer and wind up partnership estate held allowable out
of partnership assets.
7.
DEPOSITIONS. Objection to deposition as whole, dictated
during trial, on ground of apparent irregularities in giving
notice to opposing counsel of taking deposition held properly
overruled (Code 1930, section 1548).
Such
objection was properly overruled in view of objecting
parties' failure to comply with Code 1930, section 1548,
providing that all objections to a deposition, in whole or in
part, shall be made in writing and filed before the beginning
of the trial, court to determine the objections before the
trial.
Division B
[Copyrighted Material Omitted]
APPEAL
from chancery court of Claiborne county.
HON.
R. W. CUTRER, Chancellor.
Final
accounting by F. S. Wolcott, as administrator of the
partnership estate of Wolcott & Quine. From the order
approving the final account and discharging administrator,
Mrs. Mary E. Quine, administratrix of the estate of George W.
Quine, the deceased partner, and others appeal. Affirmed.
STATEMENT
OF THE CASE BY ANDERSON, J.
Appellee,
administering the affairs of Wolcott & Quine and claiming to
be the surviving partner of that firm, filed his final
account of the administration in the chancery court of
Claiborne county and with it a petition asking for his
discharge. Appellants, the widow and children of Quine, filed
exceptions to the final account and answered the petition
denying many of its material allegations. There was a hearing
on the pleadings and oral and record proof resulting in a
decree approving appellee's final account and discharging
him as administrator of the partnership estate. From that
decree appellants prosecute this appeal.
Appellants
set out a history of the case, barring the conflicting
evidence, in their brief, which is borne out by the record.
We do not think we could do better than adopt it as a part of
the statement of the case.
"George
W. Quine was, in his lifetime, a resident of Detroit, Mich.
He had a wife, Mrs. Mary E. Quine, and two children, George
W. Quine, Jr., and Mona Mae Quine. He was engaged in the
traveling minstrel show business under the name of 'F. C
Huntington's Mighty Minstrels,' which show exhibited
in and about the states of Mississippi, Louisiana, Arkansas,
Missouri, and other states. On the 25th day of October, 1929,
George W. Quine died at Caruthersville, Mo., where his
minstrel was then showing. He died intestate.
"Upon
the death of George W. Quine, the appellee, F. S. Wolcott,
upon the contention that he was a partner in business with
George W. Quine, took charge and possession
of all of the personal property, effects, and assets of
George W. Quine, including bank drafts, express money orders,
the show business, etc., at Caruthersville, Mo., and
thereafter, on the 12th day of November, 1929, filed a
petition in the chancery court of Claiborne county, at Port
Gibson, Miss., alleging that he and said George W. Quine were
partners in the operation of the minstrel show business known
as 'F. C. Huntington's Mighty Minstrels,' and
that the partnership did business under the firm name of
Wolcott & Quine; that at the date of the death of said Quine
the partnership owned the show business and also a
considerable amount in cash and in bank drafts and express
money orders, and also money on deposit, in the sum of about
two thousand five hundred dollars in the Mississippi Southern
Bank of Port Gibson, Miss., which deposit was in the name of
the deceased, George W. Quine, but that same was in fact the
property of the partnership. The said Wolcott alleged that
the estimated total value of the partnership estate was
between nine thousand dollars and nine thousand five hundred
dollars; that the partnership owed certain debts; and that it
was necessary for an administrator of the affairs of the
partnership to be appointed. As surviving partner he prayed
his appointment, and that letters of administration of the
partnership be issued to him; whereupon, the clerk of the
court issued an order granting letters of administration,
bond was filed, oath taken, and letters issued. Thereafter,
on December 7, 1929, said F. S. Wolcott, as administrator of
the 'Estate of Wolcott and Quine,' filed an inventory
showing that he had cash on hand seven hundred and eight
dollars and forty-one cents, express money orders one
thousand five hundred dollars, bank drafts two thousand five
hundred, and cash in Mississippi Southern Bank two thousand
five hundred and two dollars and eighty-eight cents--total
seven thousand two hundred eleven dollars and twenty-nine
cents--and equipment of the show estimated at two thousand
dollars. On December 7, 1929, said Wolcott filed a petition
for leave to pay a certain 'funeral
bill' in the total sum of one thousand six hundred and
nine dollars, which he has incurred with H. S. Smith,
undertaker, at Caruthersville, Missouri, alleging in his
petition that it was necessary for Wolcott to have the
remains of the deceased shipped from Caruthersville, Mo., to
Detroit, Mich., the home of the deceased, and that 'the
expense of embalming his remains and providing a suitable
casket and the undertaker's bill amounted to the sum of
one thousand six hundred and nine dollars.' He alleged in
the petition that on the day after the deceased died, the
widow of the deceased and the son of the deceased saw the
casket and were informed as to the bill and approved the
amount and agreed that it should be paid. Whereupon, on the
same date, the chancellor signed an order authorizing payment
of the account.
"On
June 6, 1930, the appellant Mrs. Mary E. Quine filed in the
office of the chancery clerk of Claiborne county duly
certified copies of letters of administration which had been
issued to her under date of November 1, 1929, by the probate
court of Wayne county, Mich., in the matter of the estate of
George W. Quine, deceased, whereby she was fully empowered as
administratrix of the estate of said deceased, and on June 9,
1930, she filed in the chancery court of Claiborne county,
Mississippi, her petition setting forth her appointment by
the probate court of Wayne county, Mich., denying that the
said George W. Quine and F. S. Wolcott had been partners, or
that said F. S. Wolcott had any interest in the property and
estate of said George W. Quine, alleging that the appointment
of F. S. Wolcott, as administrator of the partnership of
Wolcott & Quine, was without authority and the letters of
administration null and void because there are no provisions
under the laws of the state of Mississippi providing for or
authorizing the appointment of any one as administrator of
the goods and chattels of a partnership, and the only right
under the laws of the state of Mississippi of a surviving
partner is to manage or close out the partnership business,
after first having given bond to an administrator, as
provided by law; that she had had no
knowledge or indication until the 3d day of June, 1930, that
said Wolcott had applied for and obtained letters of
administration of the partnership, or that he was attempting
to administer the estate of her husband, and that under such
claim and pretention he had gained possession of more than
nine thousand dollars in cash belonging to the estate of her
deceased husband and a considerable amount of personal
property, and to her exclusion. She prayed that the letters
to said Wolcott be vacated and annulled, and that she, as
administratrix, be placed in possession of the assets of the
deceased. On the 1st day of September, 1930, the court
entered an order by which it held that the prayer of the
petition be denied, and the court considered the bond of the
administrator filed herein sufficient as that of a surviving
partner, ordered that letters of administration which had
been filed by Mrs. Mary E. Quine be recognized, and that she
be recognized as administratrix of the estate of the
deceased, with such powers, rights, and duties as are granted
by statute.
"Thereafter,
on November 20, 1930, pursuant to petition of F. S. Wolcott,
the chancellor ordered the said F. S. Wolcott to sell and
convert into cash the tangible assets which were in his
possession, consisting of the show equipment, etc. This was
done, and on December 15, 1930, said Wolcott filed his report
of sale.
"On
December 15, 1930, said Wolcott filed his final account of
the assets in his hands and liabilities owing or that had
been by him paid, and his petition for approval thereof, for
distribution and for his discharge. In his account he charged
himself with total collections of eight thousand three
hundred ninety-one dollars...
