69 P. 919 | Or. | 1902
after stating the facts, delivered the opinion of the court.
By the old law, when a person died intestate in England, the king, as parens patriae, seized his goods, and held them as general trustee of the kingdom. This prerogative he exercised at first through his ministers of justice, but afterwards (probably to aid the church) he conferred it upon the prelates, who, as his almoners, seized the goods of intestates, sold them, and distributed the money in charity, or in pios us-us. Thus the ecclesiastical courts early- secured jurisdiction of most probate matters: 2 Bl. Com. 494. “But the origin of our probate system, referable to the English spiritual courts,” says Mr. Woerner in his work on American Law of Administration (2 ed. *341), “is still recognizable in the decisions of some states as to their mode of procedure, although the rules of the civil and common law, which governed the ecclesiastical courts, are necessarily greatly modified in the adaptation to the widely different circumstances and spirit of the American people.” The court of equity, however, executing the quasi trust existing between partners in consequence of their fiduciary relations (Pomeroy, Eq. Jur. 2 ed. § 1088), took jurisdiction of all dealings between them, as an incident to accounts (3 Bl. Com. *437). Though the death of a partner dissolved the partnership (Powell v. North, 3 Ind. 392, 56 Am. Dec. 513), the surviving partner, however, retained exclusive possession of the firm’s assets, in trust for the payment
In Grant v. Shurter, 1 Wend. 150, Mr. Justice Woodworth, discussing this subjeet,.says: “In the case of a joint contract, if one of the parties die, his executor is at law discharged from liability, and the survivor alone can be sued; and if the executor be sued he may plead the survivorship, or give it in evidence under the general issue; but if the contract be several, or joint and several, the executor of the deceased may be sued at law in a separate action.” Though the creditor of a partnership at common law might proceed in equity against the estate of a deceased partner, he had no remedy at law against his representative for the recovery of such joint debt:
The right of a creditor to elect the forum and to designate the parties against whom he institutes an action at law or brings a suit in equity to recover on the obligation of a firm, after the death of a member, is not necessarily involved herein, and is treated only by way of argument, to illustrate the principle that the death of a partner eo instanti releases his estate from all liability at law upon the joint debt. Though the possession of the assets of a firm once afforded a valid reason for preventing a creditor from resorting to a suit in equity against the representative of a deceased partner (Pearson v. Keedy, 6 B. Mon. 128, 43 Am. Dec. 160), it would nevertheless seem, upon principle, that an action at law could be maintained by a creditor against such partners, not because they can exercise the right to continue in possession of the firm’s assets, if there be any, but because, the death of the partner having freed his estate from liability at law, the survivors are nevertheless liable upon their obligation. In Brigham Hopkins Go. v. Gross, 20 Wash. 218 (54 Pac. 1127), the Supreme Court of Washington reached a different conclusion. Mr. Chief Justice Scott, rendering the decision, says: “The principle upon which the survivors were allowed to be súed at common law was that, upon the death of one member of the firm, they succeeded to the entire partnership property as a matter of right, and might proceed with the due settlement of the partnership estate practically unrestricted. We have no statute making such contracts several, and, as the unqualified right to administer upon the partnership estate has been taken from the survivor, it would seem as though, in the absence of legislation authorizing it, the reason for sustaining the action against him, unless the partnership estate is insolvent, no longer exists. ’ ’ No case is cited in support of this conclusion, and as, at common law, the joint obligation of partners upon the death of one of them rendered the survivors liable in an action at law thereon, no statute declaring such effect was necessary, in the absence of which the ancient
In Mattox v. Craig, 2 Bibb, 584, it was held that an action of debt would not lie to recover upon a note for the payment of “eighty-nine dollars, to be discharged in good merchantable brick, common brick at four dollars per thousand, and sand brick at five dollars per thousand, to be delivered at the house of said Craig, in the town of Shelbyville, on or before the first day of August next.” In deciding the case Mr. Justice Boyle says: “It is a settled doctrine of the common law that debt will not lie upon a contract for the delivery of property, or the performance of any other duty, except the payment of money. This doctrine has been recognized by the de
Affirmed.