4 Bradf. 218 | N.Y. Sur. Ct. | 1857
The petitioner, Robert F. Babcock, claims to be surviving partner of the intestate, and applies for payment of a balance alleged to be due to him on partnership account. He also presents a demand on individual account, having no connection with the business of the firm. The partnership is clearly proved. There is no satisfactory evidence enabling me to form any judgment as to the state of the accounts, and it is necessary, therefore, to fall back on the rule that the members of the firm are presumed to be equally interested in the partnership assets, in the absence of any proof to the contrary. Lillis was left in possession of the partnership property and he disposed of it. I think the testimony shows that the petitioner’s share was equal in value to $1550, and also that the intestate was indebted to him in the sum of $100 on private account.
It is urged, however, by the administrator, that the Surrogate has no jurisdiction to order payment of disputed claims, nor of a demand growing out of partnership affairs, unless there has been a previous accounting between the parties, or in another court, and a balance ascertained and found due. The general point raised as to the authority of this court to pass upon demands disputed by the executor or administrator, was fully considered in Campbell vs. Bruen, (1 Bradford's Surrogate's Reports, p. 204,) nor have I seen any reason since that decision to change the views then expressed. The statute expressly authorizes the Surrogate to decree the payment of debts, legacies, and distributive shares, on the application of a creditor, legatee, or next of kin, and, on a final accounting, it is made the imperative duty of the Surrogate to determine all questions “ concerning any debt, claim, legacy, bequest, or distributive share.” (2 R. S. p. 116, § 18; p. 95, § 78, [71].) The term “ debts,” as used in the statutes relating to the estates of deceased persons, is not limited to such as are strictly legal debts, but manifestly comprehends every claim and demand by a creditor, whether recoverable at law or in equity. (2 R. S. p. 87, § 25, [27,] § 27, [31,] p. 88, § 34, p. 89, [39,] p. 92, §, 52, [57,] p. 102, § 14, [17,] p. 109, § 53, [64,].) In other