Trackwell v. Irvin

• Decision Date: 17 April 1917
• Docket Number: No. 9448.,9448.
• Citation: 66 Ind.App. 5,115 N.E. 807
• Parties: TRACKWELL v. IRVIN.
• Court: Indiana Appellate Court

66 Ind.App. 5

115 N.E. 807

TRACKWELL

v.IRVIN.

No. 9448.

Appellate Court of Indiana, Division No. 2.

April 17, 1917.

Appeal from Circuit Court, Shelby County; Alonzo Blair, Judge.

Exceptions by Thomas E. Trackwell, administrator of the estate of Samantha J. Shoup, deceased, to the report filed by Maggie M. Irvin as surviving partner of the firm of Shoup & Heck. Surviving partner's report approved and exceptions dismissed, and the administrator appeals. Affirmed.McDaniel & Ross and Wray & Campbell, of Shelbyville, for appellant. Isaac Carter and Hord & Adams, all of Shelbyville, for appellee.

IBACH, P. J.

For some years prior to her death Samantha J. Shoup was engaged in the business of propagating and selling goldfish with Maggie M. Irvin (formerly Maggie M. Heck) and Chester Heck under the firm name of Shoup & Heck. Appellee, as surviving partner, filed her final report (ratified and consented to by her surviving copartner), and the partnership business of which she charged herself with $593.58 and credits herself with the same amount. The statute evidently contemplates, where there are more than one surviving partner, that they join in the report. Section 9718, Burns 1914. But inasmuch as the trial court and the parties have treated the report as a substantial compliance with the statute and no question made below, we will so treat it.

Appellant, as administrator of the estate of Samantha J. Shoup, the deceased partner, filed exceptions to such report wherein the claim is made that there was some personal property belonging to the partnership which had not been administered upon by the surviving partner, while the surviving partner took the position, as shown by her report, that all of such property was her individual property and constituted no part of the estate of her former copartner.

The special finding of facts is as follows:

(1) Charles Heck died March 5, 1910. At the time of his death he was, and for a long time before had been, in the partnership with Samantha J. Shoup under the firm name of Shoup & Heck, and with her engaged as equal partners in the business of propagating and selling goldfish. In carrying on said business, land and much water was used. She owned a life estate in one-half of about fourteen acres of ground that was devoted to that purpose, and he owned, either in his own right or with his wife, the balance of the land used in said business, which was then 10 acres.

(2) Charles Heck left as his sole heirs at law his widow, Maggie Heck, and one son, Chester Heck. In a few days after his death an agreement and contract was made between Maggie Heck and said Samantha J. Shoup by which it was agreed between them that said partnership should be carried on as it has been during the lifetime of said Charles Heck, said Maggie Heck and Chester Heck owning and representing the interest owned and held by said Charles Heck, that said Maggie Heck should take charge of the business, as she had done, and receive for her services the same compensation that she received, and that Susie Brown should continue to be the bookkeeper for the partnership. After this agreement was made, said business was conducted under the firm name of the said Shoup & Heck by said Samantha J. Shoup and the said Maggie Heck and Chester Heck, and said Maggie Heck had charge of said business, gave it her time and attention, and said Susie Brown continued to be the bookkeeper of said firm; that said Charles Heck received for his services in caring for said business the sum of $100 per month, and occupied a residence on lands owned by said partnership.

(3) No part of the water used in carrying on said business came from the land in which Samantha J. Shoup had any interest. At and before the death of said Charles Heck, part of it came from land owned by him, or by him and his said wife, and a very large part of it came from land owned by others, which land was near to or adjacent to the land owned by him or him and his said wife. The most of said water came from springs on the land owned by one Weintraut. At the time of said Charles Heck's death, there was a controversy between said firm of Shoup & Heck on the one hand and of said Weintraut on the other as to the rights of the parties in the water that came from the land owned by Weintraut, and their rights were in litigation and so continued until October or November of that year. The latter diverted the flow of water upon his land very largely or entirely so that it did not flow on to the land owned by said partnership or by said Hecks, and by reason thereof the business of said partnership was greatly injured and its profitable continuance seriously threatened, interfered with, and obstructed. Afterwards, in October or November, 1910, said Maggie Heck and said Chester Heck purchased from said Weintraut 10 acres of land on which said springs were, and secured said water supply, and the water from said springs thereafter was ample for, and was used in carrying on, the business of said Shoup & Heck, and said Maggie Heck became the owner of the three-fourths part of said Weintraut land, and said Chester Heck of the one-fourth part of the same; and the litigation over said water rights was then terminated.

Many of the facts so found appear in the written contract, and the court further finds:

That the parties to the contract desired to use the 10 acres purchased from Weintraut in connection with the other real estate in carrying on said business, and this agreement was also incorporated in the contract, which was to continue until the death of said Samantha J. Shoup, and in the event that either of the other parties should die prior to her death, the survivor should continue the business until the death of said Samantha J. Shoup, and such survivor should have all the rights and benefits under the contract given to both Maggie Heck and said Chester Heck; that the taxes upon all the real estate and all the partnership property used and owned in connection with said business and all expense of operating the business should be paid out of the gross proceeds of the same, and the losses, if any, should be so paid, and if the losses should be so great that the proceeds would not pay them, one half of the residue should be furnished by said Samantha J. Shoup and the other half by said Maggie Heck and said Chester Heck in equal proportions; that in consideration of said Maggie Heck furnishing to said partnership her real estate and interests therein in excess of the real estate owned by the other parties, she should be paid annually the sum of $500 in cash, which was to be paid out of the gross proceeds as expenses of the operation of the business, and if there were not sufficient gross proceeds to pay said $500, said Shoup should pay to said Maggie Heck annually one-half of said amount, and said Chester Heck the one-fourth thereof; that said Maggie Heck should be paid, as compensation for her supervision and...