Leadbetter v. Price

201 P. 428 | Or. | 1921

BURNETT, C. J.

The following sections of Oregon Laws are here set down:

“The executor or administrator of a deceased person, who was a member of a copartnership, shall include in the inventory of such person’s estate, in a separate schedule, the whole of the property of such partnership; and the appraisers shall estimate the value thereof, and also the value of such person’s individual interest in the partnership property, after the payment or satisfaction of all the debts and liabilities of the partnership.” Section 1166.

“After the inventory is taken, the partnership property shall be in the custody and control of the executor or administrator for the purposes of administration, unless the surviving partner shall, within five days from the filing of the inventory, or such further time as the court or judge may allow, apply for the administration thereof, and give the undertaking therefor hereinafter prescribed.” Section 1167.

“In case the surviving partner is not appointed administrator of the partnership, the administration thereof devolves upon the executor or general administrator; but before entering upon the duties of such administration he shall give an additional undertaking in double the value of the partnership property.” Section 1170.

Provisions are made for the government of the surviving partner, if he elects to take upon himself the ancillary administration covering the partnership property. Under Section 1177, the executor is required to file with the clerk of the court an inventory, verified by his own oath, of all the property of the decedent, both real and personal, which shall come to his possession or knowledge, and this shall be done within one month after his appointment, unless further time is granted by the court. Before the inventory is filed it must be appraised by competent appraisers appointed by tbe court or judge thereof: Section 1179, Or. L.

Unquestionably, a surviving partner, if there is one, has a right to have the partnership estate properly administered according to the statutory formula, in connection with the estate of the deceased partner. The question to be determined is, whether or not that can be adjudicated in the Circuit Court of Multnomah County. The argument of the petitioner is that the title of the property is not involved, while the executor makes the opposite contention and insists that the probate court cannot adjudicate the question. The executor maintains that the petitioner is not only claiming an interest in certain individual properties mentioned in the inventory, but also seeks to surcharge that document and make the executor liable for additional property as the administrator of a partnership.

1. Following the line of reasoning as to the jurisdiction of the Circuit Court in this instance which was adopted in the case of Pittock’s Will, 199 Pac. 633, we are compelled to the conclusion that the Circuit Court in which this proceeding was litigated had jurisdiction to decide all the questions presented, not only those formerly committed exclusively to the County Courts, but also to decide cognate issues rightly joined in that tribunal. The petitioner, if he was a surviving partner, presented his grievance to a court having jurisdiction of the subject matter, and it had authority at his suit to decide the issues arising on the resultant pleadings. The court had no right to ignore the issues presented, although such a result would have been proper under the old regime of the County Courts under the former constitution. The legislature, however, has seen fit under the amended form of the Organic Act, to abolish County Courts in districts having but one county, which shall contain over one hundred thousand population. The act did not lessen the jurisdiction of the Circuit Court in such districts but increased it by the addition of probate jurisdiction, which was formerly vested exclusively in the County Courts. "When this litigation was presented to the Circuit Court, that tribunal was acting not only with respect to the probate jurisdiction but also to the general jurisdiction originally vested in such courts.

2-4. Of course, the issue is yet to be determined, whether there was in fact a partnership or not. As to the shares of stock, it often happens that corporations are formed as a means of shielding the promoters from the personal liability attaching to partners, but it does not follow because two or more individuals hold all of the stock in a given corporation, or each owns stock in the same corporate concern, that they are partners. Neither does such a result necessarily follow because those individuals together own the entire estate in land. The statement in the petition already referred to, to the effect that the decedent owned one half of the listed stock and one half of the land would indicate that he was a tenant in common of the land, and the individual owner of one half the stock. As said in Jensen v. Wiersma, 185 Iowa, 551 (170 N. W. 780, 4 A. L. R. 298):

“A partnership is a separate and distinct entity and holds the partnership property in trust for the payment of its debts. The property does not belong separately to the individual partners but to the distinct entity.”

In the last-named publication is an extensive note, pointing out the difference between partnership holding of real estate and title as tenants in common. If indeed Pittock owned so many shares of stock in his own right, and Leadbetter owned certain other shares of stock in his own right, the executor has no business with the holdings of the latter. Likewise, if they were tenants in common of certain realty, the executor has no right to inventory the part belonging to Leadbetter, hut is concerned only with the undivided share of Pittock.

These, however, are questions to be litigated on proper issues submitted to the Circuit Court in addition to the issue of partnership or no partnership. The decree is reversed and the cause remanded.

Reversed and Remanded.

Bean, Brown and McCourt, JJ., concur.