83 Mo. 413 | Mo. | 1884
It appears from the record in this case that in August, 1877, L. II. Warinner, a member of the partnership of Warinner, Gregory & Co., a firm ■composed of L. H. Warinner, W. S. Gregory and James H. Beckham, departed this life; that after his decease W. S. Gregory and James II. Beckham, surviving partners, in August, 1877, filed their bond in pursuance of the statute, took charge of the assets of the partnership and proceeded to wind up its affairs. The record ■shows that two annual settlements were made in the probate court, in each of which the surviving partners took
Although it appears in the case of Crow v. Weidner, 36 Mo. 412, that a surviving partner who had given the
Counsel for respondent claim that such change has been effected, and base their claim on section 9, 1 Wag. Stat., p. 108, which is as follows : £ £ In all settlements of executors or administrators, the court shall settle the same according to law, allow all disbursements and appropriations made by order of the court; * * * and as full compensation for their services and trouble a commission of five per cent, on personal estate and on money arising from the sale of real estate.” Before this section can be held to sustain the claim laid upon it, it must be made clearly to appear that a surviving partner who gives the statutory bond and proceeds to wind up the partnership affairs is an administrator in the sense in which that word is used in the section above quoted. It is plausibly argued that such .surviving partner is an administrator in the sense of the statute, and that this is shown by such
The conclusion arrived at by counsel by no means follows from the premises on which it is based. Besides this it is to be observed that the surviving partner is neither designated nor spoken of in any section of the administration law as an administrator, but always and invariably as surviving partner and if he brings suit to recover a debt of the firm he cannot sue as administrator but must sue as surviving partner, and if he be sued it must be as survivor and not as administrator. No letters of administration are required to be issued to him, as the basis of his authority to manage the partnership property. The common law vests in him the authority to act, and his duty to act arises out of the relation which, as a partner, he sustains to the partnership property. An administrator under our statute is one who derives his authority from letters of administration granted to him by the probate court and he only becomes such when such letters ¡are granted and issued to him. The words ‘ ‘ administer ’ ’
“ The bond is but a pledge for the security of that portion of the effects belonging to his deceased partner’s estate committed to his charge.” Green’s Adm’r v. Virden, 22 Mo. 506. He is bound by the terms of his bond to use due diligence and fidelity in settling the partnership affairs, render an annual account, apply the assets to the payment of firm debts, and within two years to wind up its affairs (unless the time is extended by the •court), and if there be an excess after satisfying all partnership demands and costs and expenses, to pay to the administrator of the deceased partner the proportion of ¡excess due the estate. All of these things, except making annual settlements in the probate court and winding up the partnership in two years, he was required to do at ■common law, and these two things were required of him in order to bring about a speedy settlement and as a guarantee for the faithful performance of his common law •duties. He does not give the bond as administrator, but as surviving partner, and he is so nominated in the bond.
It is, also, claimed by counsel for respondent, that section 66, 1 Wag. Stat., p. 81, and section 10, 1 Wag. Stat., p. 120, warrant the inference that section 9, 1 Wag. Stat., 108, which fixed the compensation of administrators and executors, was intended to apply to a surviving partner who closes up the partnership. Said sections 66 and 10 are as follows : £ £ The administration upon the partnership effects shall, except as otherwise provided in the last preceding sections, relating to administrations upon partnership effects, conform, so far as the other provisions of this chapter may be applicable, to administrations in ordinary cases; and the person administering upon the partnership effects and his securi-' ties in his official bond, shall perform the same duties, •
Tbe case of Hawkins v. Cunningham, 67 Mo. 415, to wbicb we bave been cited, so far trom being antagonistic to tbe views above expressed, is in barmony witb them. It was simply beld in tbat case tbat an administrator, pendente lite, was not embraced witbin tbe provisions of tbe statute allowing five per cent, commissions to executors and administrators, and tbat be was only entitled to commission on tbe amount disbursed by bim during tbe pendency of tbe suit in paying debts of tbe estate. For tbe reasons above given we must return a negative answer to tbe first question propounded by tbis record.
Tbe second question is : Ought the surviving partner to be charged witb interest on tbe assets of tbe partnership in bis bands while winding up tbe business of tbe firm ? To' this question we' must, also, return a negative answer, for tbe reason tbat it neither appears tbat there was unnecessary delay in closing up tbe business of tbe firm nor tbat the money of tbe partnership was used by tbe surviving partner in bis business, nor tbat be made profit out of it. Madden v. Madden, 27 Mo. 544; Williams v. Petticrew, 62 Mo. 460; Scott v. Crews, 72 Mo. 261.
Tbe judgmeut of tbe circuit court, for tbe reasons herein given, will be reversed and tbe cause remanded in order tbat tbe final settlement be made to conform to tbis opinion.