217 Mass. 233 | Mass. | 1914
The plaintiff brings this suit in equity to compel the defendant as administratrix of the estate and widow of Patrick P. Murphy to perform specifically the provisions of a partnership agreement entered into between him and the defendant’s husband. The findings of fact made by the judge of the Superior Court, the evidence not having been reported, must be accepted as final. These are in substance that the plaintiff and his brother, the husband of the defendant, were conducting a liquor business as copartners under an oral agreement. In April, 1912, they entered into a written agreement whereby the partnership was extended for five years from May 1, 1912. It further was stipulated that, in the event of the death of - Patrick before the end of the five year period or before the earlier termination of the partnership by mutual consent, the plaintiff should pay to the widow or legal representatives of Patrick $3,000, and that thereupon he should become the sole owner of the partnership business. At this time Patrick, although in poor health, was capable of making the agreement and understood and appreciated its effect. He executed the contract voluntarily and without fraudulent or improper influence. There was some talk between the brothers respecting mutual wills, but Patrick believed that the partnership agreement was the best way of carrying out his desire that, in the event of his death, the plaintiff should own his interest in the partnership property upon paying $3,000, which he thought, together with his other property, would sufficiently provide for the defendant. He did not intend to evade the provisions of the statute of wills, nor, fraudulently or otherwise, to deprive his wife of her statutory rights. The plaintiff has offered to pay the defendant $3,000, but she has refused to accept it and release her interest in the partnership business.
Partnership agreements which provide for the conduct of the business after the death of one or more of the partners, and for the disposition of the interest of partners in the partnership in such event, are frequent. See Williams v. Brookline, 194 Mass. 44. When fairly made", without any illegal purpose and without the
The plaintiff as the surviving partner, in the absence of any term in the articles of copartnership governing the matter, would take as owner the legal title to firm property. Holbrook v. Lackey, 13 Met. 132. Hewett v. Hayes, 204 Mass. 586, 592. He would take it, however, subject to the duty to pay the firm debts, settle the partnership accounts, and account to the personal representatives of the deceased partner. In a certain sense he would hold it as trustee, partly for the benefit of the estate of the deceased partner. There is no reason in equity why the defendant should ¡not be required to release this beneficial obligation which, but ¡for the contract, would exist in her favor. Maddock v. Astbury, 5 Stew. 181.
The first paragraph of the decree requires the defendant as administratrix, “to release to the plaintiff all her interest in and to all of the partnership assets, of the firm of Murphy Brothers, including said license.” A question is raised as to the propriety of including the license. There is no finding respecting the value of the liquor license which was issued to the firm by the licensing board of the city of Boston. Such a license is a purely personal privilege which, although usable by the holder, is not assignable or transferable by him in any way. Certain quasi property interests growing out of the peculiar custom existing in the city of Boston as to the granting of licenses are recognized by the federal courts. Fisher v. Cushman, 43 C. C. A. 381. See Tracy v. Ginzberg, 189 Mass. 260; Ellis v. Small, 209 Mass. 147, 150; Putnam v. Bolster, 216 Mass. 367. It is not necessary, however, to
Decree affirmed with costs.