State ex rel. Dockery v. Hubbard
| Decision Date | 01 April 1918 |
| Citation | 203 S.W. 250,199 Mo.App. 137 |
| Parties | STATE OF MISSOURI at the Relation of THOMAS J. DOCKERY, Administrator of the Estate of LEWIS HUBBARD, Deceased, Respondent, v. L. F. HUBBARD and EMMA HUBBARD, Appellants |
| Court | Kansas Court of Appeals |
Appeal from Adair Circuit Court.--Hon. A. Doneghy, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
C. E Murrell and J. E. Reiger for appellants.
Higbee & Mills for respondent.
Prior and up to June , 1913, William Hubbard and Lewis Hubbard were partners owning and conducting a drug store. William died intestate, and on June 20, 1913, Lewis, the surviving partner, was appointed administrator of the partnership estate, gave bond, took charge of said estate and filed an inventory and appraisement thereof on July 7, 1913. The appraised value of the partnership estate was $ 2350.
Shortly thereafter Lewis Hubbard sold a half interest in the drug store to James F. Waddill for $ 1175 (for which he took notes), said amount being one-half of the appraised value; and thereafter Waddill and Lewis Hubbard continued the business as partners until December 8, 1913, when Lewis died. The sale of said one-half interest by Lewis to Waddill was made privately and no report of the transfer of the store to the new partnership of Waddill and Hubbard was ever made to the probate court.
On January 6, 1914, relator Dockery was appointed Administrator of Lewis Hubbard's individual estate. As such administrator he caused this suit to be brought on the bond given by Lewis Hubbard as Administrator of the partnership estate of Hubbard & Hubbard, defendants being sureties thereon.
A demurrer to the petition on the grounds that it did not state a cause of action, that relator had no capacity to sue and was not the proper party to bring or maintain it, was overruled. Thereupon defendants answered and went to trial before the court without a jury. No declarations of law were asked or given. The court found for the plaintiff and assessed the damages at $ 2350 with six per cent interest from December 5, 1915, the date of the institution of suit, aggregating $ 2615.75, and rendered judgment for the penalty of the bond to be satisfied by the payment of the above amount. Defendants have appealed.
By answering over after the demurrer, defendants waived any defect or informality not amounting to an entire absence of any cause of action whatever. But, of course, the questions of relator's right and capacity to sue, and whether any cause of action whatever was stated were not waived, and remained to be decided.
When William Hubbard died, the right to settle the partnership estate vested in Lewis Hubbard, the surviving partner. Such right was his under the common law and was not dependent upon his giving bond as required by section 91, Revised Statutes 1909. Had he failed to give such bond he might have been deprived of the partnership assets by the administrator of William Hubbard's individual estate had one been appointed. [Goodson, Admx., v. Goodson, Extr., 140 Mo. 206, 215, 41 S.W. 737.] Our statutory provisions with reference to the giving of bond by the surviving partner do not change his common-law right nor even effect it, except in the contingency noted. Upon the dissolution of the firm by the death of William Hubbard the legal right to all the partnership assets for the purpose of winding up the firm's affairs, went to Lewis Hubbard as surviving partner. [Hargadine v. Gibbons, 45 Mo.App. 460, 467 and authorities there cited.]
It is clear that even if Lewis Hubbard had not qualified under the statute as administrator of the partnership estate, but had acted merely under his commonlaw authority, then, upon his death the right and duty of administering upon said partnership estate would have passed to and devolved upon his administrator, the relator herein. [Hargadine v. Gibbons, supra; Dayton v. Bartlett, 38 Ohio St. 357.] "The executor or administrator of a surviving partner, who died with partnership effects in his possession while engaged in settling the partnership business, is entitled to the possession of such effects, and is charged with the duty of completing such settlement; and he cannot be precluded from receiving compensation out of the partnership funds for his services in the performance of this duty." [1 Woerner on Administration, 286.] But defendants offered to prove that on December 12, 1913 (prior to relator's appointment as administrator of Lewis's individual estate), the probate court appointed John Ryan as Administrator de bonis non as his successor, and the question arises whether this will affect or change the right of Lewis's administrator to take charge of said partnership estate or to maintain this suit without any modification or revocation of the order appointing the administrator de bonis non, and without any order directing relator to proceed in the partnership estate?
In Byers v. Weeks, 105 Mo.App. 72, l. c., 76, it is said "It seems that the statute fails to provide for the administration of a partnership estate, except, either by the surviving partner or by the administrator of the surviving partner." In that case, however, there had been no administration on the partnership estate either by the surviving partner or by the administrator of the deceased partner, and the latter had fully administered the individual estate, paid all debts thereof and had been discharged, without administering the partnership assets, having been led not to do so by the fraudulent representation of the surviving partner that the partnership had been fully settled and dissolved during the life of the deceased partner and that he had been paid his full share. It would seem that there were no debts of the partnership estate, and as the individual estate had been fully administered and all debts paid, there was no basis for the reopening of the individual estate by the appointment of an administrator de bonis non. In fact if there were no debts of the partnership, as must have been the case, there was no need for any administration on either estate at the time the heirs brought suit. And the remark of the court was made in upholding the right of the heirs to sue in equity to recover their part of the partnership assets under the circumstances, and not as holding that there is no authority in our statutes for the appointment of an administrator de bonis non of a partnership estate in a case where the surviving partner has qualified under the statute and then dies, and...
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