113 Cal. 371 | Cal. | 1896
The deceased, Jerome B. Painter, was a brother of the plaintiff, and also of the defendant Theodore P. Painter. At the time of his death, in ¡February, 1883, the deceased and the defendant Theodore P. Painter were copartners in a firm called “Painter & Co.,” engaged in the business of manufacturing and selling printing presses, type, and other printers’ materials. On March 11, 1864, the deceased made his will; and at that time plaintiff was also a copartner in said firm, but he afterward withdrew from the copartnership. The firm owned a large stock of machinery, type, materials, and fixtures necessary to carry on its business, and also some real property which was worth at the time of the death of the deceased about six thousand six hundred dollars. The first clause of the will is as follows: “1st. I give and bequeath to my brothers, J. Milton Painter and Theodore P. Painter, all my share, right, title and interest of, and in and to, the co-partnership of Painter & Co., the stock thereof, its business, goodwill, and all interests, of whatever nature, connected with them as partners (except real estate), debts due us and moneys out at interest, for their own use and benefit, upon the express condition that they assume all debts standing against the concern, and pay
The averments of the complaint necessary to be noticed are, in brief, these: It is averred that the deceased in his lifetime borrowed, from time to time, large sums of money from said firm and paid and agreed to pay interest thereon; and that at the time of his death, on account of such borrowed money and some other items of account, he was indebted to said firm in the sum of thirty-three thousand five hundred and thirty-four dollars and sixty-two cents. It is further averred that the share of the deceased in the personal assets of said firm are not sufficient to repay his said indebtedness; that the executors and executrix, or some of them, claim that the deceased was not indebted to said firm in any sum of money whatever; that the defendant Theodore P. Painter, as surviving partner, is engaged in liquidating the affairs of said copartnership, and claims that it is necessary for him to sell all of the stock on hand, machinery, type, materials, fixtures, general assets and goodwill of the business in order to repay the said amount due from the deceased to said firm and to settle the accounts of the deceased with the firm, and threatens so to do; and that if he be permitted to do so the legacy to plaintiff will be wholly defeated. It is further averred that plaintiff, as such legatee, is entitled to de
The defendant, Theodore P. Painter—executor and surviving partner — filed a short answer in which he substantially made default; but the other defendants, including the widow and children of the deceased, answered and denied all the material averments of the complaint. They specially deny that deceased at the time of his death owed said firm any borrowed money, or that he was indebted to said firm for any cause in any sum of money whatever; and they deny that the share of deceased in the personal property and assets of such firm, including large amounts due it upon bills receivable, is not sufficient to pay all partnership obligations.
The court found all the issues of fact in favor of defendants; and found particularly that the deceased was not indebted to said firm for borrowed money, or for any other cause, in any sum of money whatever. Judgment was rendered for defendants, and plaintiff appeals from the judgment.
The transcript includes a bill of exceptions which contains evidence introduced at the trial, and appellant contends that some of the findings are not sustained by the evidence; but he cannot be heard on these points because the appeal was not taken within sixty days after the rendition of the judgment. (Code Civ. Proc., see. 939.) The cause was tried in 1887, and the findings of fact and conclusions of law were made and filed on December 3,1887, and judgment ordered for defendants; although the judgment was not entered until October 18, 1894. The notice of appeal was not given until after the entry of the judgment, to wit, on November 19, 1894, which was nearly seven years after the filing of
Looking at the judgment-roll alone we see no good reason for reversing the judgment. The plaintiff is the sole appellant, and the findings and judgment are important here only so far as they affect him and his interests. In his complaint he asks, among other things, “ that a" construction be made by- this court of the terms of the said will making the said bequest to the plaintiff and the said Theodore P. Painter.” We assume for the purposes of this decision—without closely examining or determining the question—that appellant can, in this action, have the will construed so far as a construction thereof may determine the quantity of his interest as legatee in said partnership property, blow, upon this point the respondents aver that all the property in which the deceased had any ownership at the date of the will and at the time of his death was community property, and that he could not and did not bequeath or devise any more than his half interest in said community property; and that, therefore, the bequest of the said property to appellant and said Theodore did not carry the interest of the surviving wife, Caroline H. Painter, therein. It is also averred that the respondent, Eugene Painter, who is a son of the
We see no other question in the case which it is necessary to discuss.
The judgment is affirmed.
Henshaw, J., and Temple, J., concurred.
Beatty, C. J., dissented from the order denying a hearing in Bank.