No. 2587 | Nev. | Dec 5, 1923
Lead Opinion
By the Court,
This is a suit between Baptiste Mentaberry and Victoriana Mentaberry, individually and as administratrix of the estate of Juan Mentaberry, deceased. It appears from the complaint that plaintiff and Juan Mentaberry were, during the lifetime of the latter, partners, engaged in the livestock business, or more particularly in buying, selling, and herding sheep. Juan Mentaberry died intestate in Humboldt County in November, 1918, and in January, 1919, letters of administration upon his estate issued to his widow, Victoriana Mentaberry. It is alleged that as such administratrix she caused to be inventoried as the property of the deceased all the property, both real and personal, of the copartnership, and in the course of her administration expended all the partnership assets under the orders of the probate court, .except the sum of $4,864.06. The prayer of the complaint is that an account be taken of all and singular the partnership property, and that the defendant be directed to deliver to plaintiff, as surviving partner, all partnership property of whatsoever
Plaintiff, however, appeals from the judgment, with the view of having this court modify so much thereof as is predicated upon the conclusion of law that the defendant should apply all of said moneys now held by her, to wit, $4,864.06, to the payment, pro rata, of the partnership claims, which were presented, allowed, and approved as claims against the estate of Juan Mentaberry, deceased, as shown by the defendant’s account of her administration. Appellant asks that the judgment be modified, by directing the trial court to order the defendant to pay said sum of $4,864.06 to plaintiff, for the reason that, both on principle and on authority of the statute, upon the dissolution of a partnership by death, the legal title to the firm assets vests in the surviving partners, who are given exclusive right to the possession and control of the partnership assets,' for the purpose of paying the partnership debts and disposing of the partnership effects for the benefit of the survivor and the estate of the deceased.
In an action between a surviving partner and the administrator of a deceased partner, a court of equity alone is competent to administer proper and full relief
It is held in numerous cases that, even when an action at law will not lie, the surviving partner may be entitled to maintain a suit in equity for an accounting and decree against the deceased partner’s representatives. 30 Cyc. 649. U;pon the showing made on the accounting in this case, the court treated the fund of $4,864.06 as a partnership asset, to be appropriated to the payment of the partnership debts in preference to the claim of plaintiff as a member of the partnership. It developed from the accounting that both the partnership and the estate of the deceased was insolvent. The court, under the circumstances, could not have done otherwise, in justice to the creditors or the administratrix, than to order the money in the latter’s hands paid directly to the firm creditors. The creditors had a primary and preferable claim, and the administratrix had the right to insist upon the due application of the money directly to those shown to be entitled to participate in its distribution.
Furthermore, under the findings, we do not appreciate that appellant has shown himself to be entitled to the modification of the judgment. It is inferable from the findings that he is alone responsible for the position in which he finds himself. It seems that he stood by and allowed the defendant to reduce the partnership assets to her possession as administratrix and distribute them under the orders of the court without objection, and made no effort to take control of the property from the administratrix. The plaintiff was given judgment for all sums of money belonging to the partnership, which had not been expended by the administratrix in payment of the partnership debts. The
The judgment is affirmed.
Concurrence Opinion
concurring:
I concur in the order of affirmance. ■ The theory of appellant is that, being a partner, the privilege of closing up the affairs of the partnership vested in him. Unquestionably this general rule is well recognized and has been incorporated into our statutory law (Rev. Laws, 6025; Yturriaga v. Cobeaga, 47 Nev. 59, 214 Pac. 27), but the question naturally arises in this connection if that right is not a mere privilege, which may be renounced or waived.
Let us look at the facts of this case: At the time of the death of Juan Mentaberry, the plaintiff was, and for eight years theretofore had been, a resident of France. He did not arrive in the United States for four months thereafter, and upon his arrival he found that the respondent had qualified as administratrix of the estate of Juan Mentaberry, and as such had taken possession of all of the assets of the partnership, and was administering them as the assets of the estate of the deceased. Notice having been given only to the creditors of Juan Mentaberry, the creditors of the partnership filed their claims, which were approved and allowed by the court as claims against the estate of Juan Mentaberry. It may be well to observe that there is no finding of the court as to whether the business was run under a firm name or in the name of Juan Mentaberry. It appears from the findings of the court that there is now due to the creditors of the partnership upon the claims allowed by the court over $15,000, and that there is in the hands of the respondent the sum of $‘4,864.06 with which to pay such claims, and which the court has ordered the respondent to apply thereto. It is from this order that the appeal is taken.
As we have pointed out, it is the privilege of a surviving partner to close up the affairs of a partnership; but, when such surviving partner is not at hand to take charge of the partnership affairs, the court, upon proper application, will appoint a receiver to do so, rather than permit the assets of the partnership to be wasted. No receiver was appointed in this matter, but the property was taken charge of and preserved under the supervision of the court, and the plaintiff stood by for over two years after the death of Juan Mentaberry without invoking the aid of a court to enable him to exercise the right of survivorship conferred upon him by the statute. While the partnership estate has been administered as a probate proceeding, the identical results have been accomplished which might and would have been attained, so far as the money in question is concerned, in a receivership proceeding. The creditors of the partnership and the plaintiff have been fully protected.
In the circumstances, no benefit would result to any one by a reversal of the judgment, and we cannot say that the lower court erred; but, if it did, since section 5066, Rev. Laws, provides that no judgment shall be reversed when the substantial rights of the parties are not invaded, the judgment should be affirmed.
Rehearing
On Petition for Rehearing
Rehearing denied.