Byrd v. King

82 So. 312 | Miss. | 1919

HoldeN, J.,

delivered the opinion of the court.

The partenership composed of A. M. Byrd and J. I). King was doing a general land business under the firm name of Byrd & King in Neshoba county. A. M. Byrd died in 1912, and afterwards J. D. King took out letters of administrator on the partnership estate and proceeded to administer the same for several years, when he. was required by the court to file his final account, which account, when filed, was excepted to as to several items; hence this controversy and appeal here.

The item of. the it. Gr. Ford note and trust deed for five hundred and seventy-five dollars, and the Bank of Philadelphia item of five hundred and twelve dollars and' ninety-four cents were allowed as a credit on the account of King against the estate of A. M. Byrd, and the appellant, Mrs. Mary Byrd, contends that the’ court erred in permitting these credits to King. The appellant also contends that the lower court erred in allowing to the adminstrator, King, five per cen+- commission for handling the estate as administrator, for the reason that it was a partnership estate, and the surviving partner is entitled 'to no compensation for his services in handling and settling the partnership ..estate of the deceased partner, A. M. Byrd.

Without lengthy discussions of the questions presented, we think the lower court committed no error in. allowing to the administrator, King, the five hundred and twelve dollars and ninety-four cents principal and interest paid to the Bank of Philadelphia by him as the administrator and surviving partner in settlement, of the partnership debt. It makes no difference as to the manner in which King paid this partnership debt to the bank; he paid it out of his individual funds, and was properly allowed a credit therefor in his final account.

It is shown by this record that the Ford note due to the partnership of Byrd & King, for five hundred and seventy-five dollars was paid to King as administrator or as surviving partner, and the chancellor erred in refusing to allow this partnership item to the credit of the partnership estate. The administrator, King, was not entitled to retain for his individual benefit this five hundred and seventy-five dollars paid by Ford in settlement of the Ford note due the parnership of Byrd & King, because the competent evidence offered was insufficient to show sole ownership of the note in King.

The chancellor erred in allowing five per cent, commissions to the administrator, King, for his services in administering the partnership estate, for the reason that Mr. King, as - surviving partner and as administrator of the partnership estate, was not, under the law, entitled to any commission for such service. The rule seems to 'be well settled in the courts, of all the states, except perhaps one, that no compensation is to be allowed to the surviving partner for services rendered in the administration and settlement of the partnership estate, unless such compensation is authorized by statute or partnership agreement or some other valid understanding. We have no statute in Mississippi providing for such compensation to a surviving partner, and there appears to have been no agreement of that hind between the partners or otherwise in this case, and the long-' established general rule being that the surviving partner, on account of the relation due to the partnership, is obligated to render his services free in the settlement of the partnership estate at the death of. the other partner, and as it does not appear that this is such a case as would warrant an exception to this general rule, we shall adopt' and follow the. general rule as the law of this case. 30 Cyc. 635; 20 R. C. L. p. 999; Consaul v. Cummings, 222 U. S. 262, 32 Sup. Ca. 83, 56 L. Ed. 192; Ruggles v. Buckley, 175 Fed. 57, 99 C. C. A. 73, 27 L. R. A. (N. S.) 541, 20 Ann. Cas. 1057.

It is urged by cbunsel for the appellee that this rule denying compensation to the surviving partner for services rendered the partnership estate is unreasonable and rests upon a sandy foundation. In other words, it is contended that this rule is without a good reason and is unjust to the surviving partner, in that it compels him to contribute his valuable time and services in the management and settlement of the partnership estate without compensation, which is a burden and imposition that the surviving partner should not be made to suffer, but that reasonable compensation should be decreed the same- as allowed for similar services rendered in other cases. The argument of counsel is very persuasive, and is may be that the legislature ought to adopt the view of counsel and pass a statute to that effect; but we feel that we should decline to reject the soundness of . the rule, so long established and' followed by the many able courts of our country. The reason for the rule was possibly stronger when/it was first announced than it is at this time, but we think the basis, of the rule is still sufficiently logical and solid.

We find no reversible error in his record upon the direct and cross appeal, except as indicated above. Therefore the decree of the lower court is affirmed on cross-appeal, and is affirmed on direct appeal as to the Bank of Philadelphia item of five hundred and twelve dollars and ninety-four cents, and reversed as to the Ford note of five hundred and seventy-five dollars, and reversed as to the five per cent, commissions allowed to the surviving partner and administrator, King.

Reversed in part, and affirmed in part.