Gandy v. Dickson
166 Pa. 422
Pa.
1895
Check Treatment

Opinion by

Mr. Justice McCollum,

We think the learned judge of the court below reached a *427correct conclusion in this case and gave good reasons for it. The contention, briefly stated, concerns the right of the legal representatives of a deceased lessor to distrain for rent due, the goods and chattels of his deceased lessee in the hands of the administrator of the latter. They base their claim of a right so to do upon the lease which created the relation of landlord and tenant between the decedents, and by its terms extended to their respective “heirs, executors, administrators, successors and assigns,” their respective rights and liabilities under it. The right of distress as defined by the lease was exercisable on the nonpayment at maturity of any quarter’s rent, and included goods while on the premises and for thirty days after their removal therefrom. It is undisputed that the goods replevied in this case were distrained by the legal representatives of the lessor while in the custody and under the control of the administrator of the lessee, and the question to be decided is whether the distress was authorized by the provisions of the lease to which reference has been made. The distrainors have not brought to our notice any decision of this court which directly sustains their claim nor do we know of any. They have cited Gratz v. Bayard, 11 S. & R. 41; Laughlin v. Lorenz, 48 Pa. 275, and Leaf’s Appeal, 105 Pa. 505, as analogous in principle to the case at bar. In the first case cited, it was held that by express agreement a partnership may continue after the death of one of the partners, and further, that upon the assignment by the survivor of the firm effects for the benefit of creditors, the whole partnership fund including what was contributed thereto by the deceased partner’s estate, passed to the assignee and was applicable to the partnership debts. Laughlin v. Lorenz decided that the legal representatives of a deceased partner may carry on the business for, and bind the estate, where a covenant to that effect existed in the articles of copartnership, or he directed by will that it should be done. Leaf’s Appeal recognized the validity of a stipulation in the copartnership articles for the continuance of the firm after the death of a member, and enforced the principle that during the continuance of it real estate constituting a part of the partnership fund must be regarded as personalty, subject, however, to the qualification that one partner cannot dispose of the firm interest in it, unless specially author*428ized to do so. These cases acknowledge and sustain the power to create a partnership which may survive the death of one of its members. The exercise of the power may postpone the recovery by the estate of the deceased partner of a possible asset ascertainable on the dissolution of the partnership and the liquidation of its affairs, and it may perhaps, diminish the same, but such asset when recovered is on the footing of other assets of the estate, as regards distribution among creditors. It is believed therefore that the cases cited do not govern the case at bar, nor afford material assistance, in the decision of the question involved in it. The distrainors had no lien on the goods, for rent, in the lifetime of the decedent, and at his death they passed to his administrator as other assets of the estate did. His custody of them was lawful, and for the purposes of administration. It was his duty to apply them to the payment Of the decedent’s debts in the order prescribed by the statute. In this order, funeral expenses, medicine furnished and medical attendance given during the last illness of the decedent, and servants’ wages not exceeding one year, constitute the first class and have precedence; rents not exceeding one year form the second class, and all other debts belong to the third class, “ except debts due to the commonwealth which shall be last paid.” It is possible that the order thus prescribed may be qualified as to assets on which there are liens acquired in the lifetime of the decedent, but as no liens of this character appear in the case before us, the qualification suggested does not require present consideration. Our conclusion is, that the distress of which this litigation is the outcome was not warranted by the lease, and was in plain violation of the laws governing the administration and distribution of .the estates of decedents.

We do not consider it necessary to add anything further to what was well said by the learned judge of the court below in vindication of the judgment entered there.

Judgment affirmed.