204 Mass. 586 | Mass. | 1910
The arrangement made in August, 1903, between Bangs and Wells was not in any sense a dissolution of their firm or a transfer of its assets or any of them to Wells. It was merely a device adopted to remove Bangs, at least for a time, from any active control or management of the business of the firm and to give the power of management exclusively to
This right extends also to all real estate of the partnership,
The surviving partner takes the firm property as "its absolute owner, though subject to a liability to account for its proceeds and for their application to the payment of the firm debts and the settlement of the partnership accounts. Accordingly his own debts and demands and those due to or from the late firm may be joined in a single action or may be set off against each other. Holbrook v. Lackey, 13 Met. 132, and cases there cited. An allowance may be made to his widow from the firm assets as from his own personal estate, even though the firm be insolvent. Bush v. Clark, 127 Mass. 111. He may make a valid assignment of the firm property for the benefit of its creditors. Haynes v. Brooks, 116 N. Y. 487. He is in all respects dealt with as the owner of the property, though liable to account for its proceeds.
Accordingly it was held under our insolvent law that upon proceedings in insolvency by or against a surviving partner, his assignee will take both the separate property and the firm property of the insolvent debtor, to be distributed respectively in the manner prescribed by the statute. Burnside v. Merrick, 4 Met. 537. Howard v. Priest, 5 Met. 582. Rice, appellant, 7 Allen, 112. Durgin v. Coolidge, 3 Allen, 554. Merrick, J., said in the case last cited: “ It is therefore quite clear that, upon the death of one of two partners, the survivor may rightfully apply to the Court of Insolvency by petition, and that thereupon due proceedings may be had for the sequestration of the partnership property, and the disposal of it for the payment of the debts due to the partnership creditors.” The rule under the United States Bankrupt Acts has not been uniform. In many districts the doctrine declared in this Commonwealth has been adopted and followed. In re Stevens, 1 Sawyer, 397. In re Temple, 4 Sawyer, 92. Briswalter v. Long, 14 Fed. Rep. 153. In re Pierce, 102 Fed. Rep. 977. It has been denied. In re Evans, 20 Am. Bankr. Rep. 406. In re Bertenshaw, 157 Fed. Rep. 363. In other cases, although the question was not really raised and
We are of opinion, that the rule declared in our own decisions already cited has been approved by the weight of authority in the administration of the federal bankrupt act. It is not denied that it has been adopted by the federal courts of this district. The decision in the Bangs case, brought before us in the record of another case between these parties argued a few days after the case at bar, is decisive upon that point. The plaintiff will be held to account in the bankruptcy court for whatever assets of the late firm they may be able to get into their hands. It is desirable that all those assets should be administered and the affairs of the late firm adjusted, so far as may be, in one forum.
Accordingly we consider that the plaintiff has a right to main
It is suggested however that much of the funds in the defendants’ hands which are the subject of this bill must be regarded as merely irust funds which ought not to be paid over to a trustee in bankruptcy. But the bill avers that the money which was drawn or received by Wells and used by him in the purchase of the stocks that are sought to be recovered included money of the firm and commissions to which it was entitled.
Demurrer overruled.