Claflin & Co. v. Behr's Adm'r

89 Ala. 503 | Ala. | 1889

SOMEEYILLE, J.

1. It is the settled doctrine in this State, too long and often declared to be now disturbed, that partnership creditors are not entitled to share pari passu with the separate creditors in the estate of a.deceased partner, when it is insufficient to pay the separate debts, and the surviving partner, or other trustee of the partnership assets, though insolvent, has a joint fund in his hands. Especially is this true when a creditor has already shared in a distribution of a dividend from the partnership fund, as in this case. This rule has been uniformly followed in both the Chancery and Probate Courts of this State, being a recognized and established rule of practice. And there is nothing in the provisions of our statutes, making partnership debts several as well as joint, which operates to change or modify this equitable rule. The following authorities are conclusive on these questions, and we are satisfied with the principles announced in them. — Smith v. Mallory, 24 Ala. 628; Bridges & Co. v. McCullough, 27 Ala. 661; Van Wagner v. Chapman, 29 Ala. 172; Evans v. Winston, 74 Ala. 349.

The Probate Court properly decreed that the appellants were not entitled to share in the assets in the hands of Samuel Behr’s administrator, until the individual creditors had been paid in full.

2. The paper held by the First National Bank was a claim alike against the partnership of S. Behr & Bro., as well as against S. Behr individually — the names of each being on the paper, and aiding to give credit to it in the hands of the holder. It could, therefore, be proved as a lawful demand against the individual estate of S. Behr, as well as against the partnership of S. Behr & Bro. — Wilder v. Keeler, 3 Paige, 167; 23 Amer. Dec. 781; s. c., 3 N. Y. Ch. Rep. 101.

We discover no error in any of the rulings of the Probate Court, and its judgment is affirmed.