Quinn's Administrator v. Quinn

22 Mont. 403 | Mont. | 1899

HUNT, J.

1. Counsel for Bernard Quinn objects to the substitution of the special administrator of Charles Quinn as plaintiff. But we are advised on the argument that there is a delay, on account of some contest in the District Court of Silver Bow county in granting letters of administration, and that because of such delay no administrator has yet been appointed. Under such conditions, we believe a special administrator has a right to appear in a pending suit, and to represent the interests of the decedent’s estate. In so doing the special administrator but exercises the authority given to him by Sections 2500, 2504 of the Code of Civil Procedure, to collect and preserve the estate for the administrator to be regularly appointed, and, for the purpose of collection and preservation, to commence and maintain suits and other legal proceedings as an administrator could do. Within the duties of collection and preservation is the prosecution of a suit already commenced to obtain an interest in property belonging to the decedent, for upon its determination may depend the collection of property which represents the bulk of the estate. Plainly, therefore, the special administrator is a proper party, and may be substituted as plaintiff herein. (State ex rel. Bartlett v. Second Judicial District Court, 18 Mont. 481, 46 Pac. 259.)

2. It is contended that the findings to the effect that by their joint labors and funds the brothers acquired interests in common in real and personal property are unsupported by the evidence. We shall not recite the testimony, but merely say that every finding of referee is amply sustained. These brothers joined their interests in an association to carry on business together, and to divide its profits or losses between them. Brotherly affection, mutual confidence, and trust kept them close together as men; and, although they made no express agreement forming a partnership, the transactions and relations of one towards the other in their affairs show that they intended to be partners, and were so in law. (Story on Partnership, Section 7.) Por nearly 30 years they plodded along, acquiring and owning everything share and share alike, living together as bachelors, without books of account between them, without division of funds, without suspicion of one another, known to the world as partners, and without a break in the ties of unmeasured confidence which had inseparably bound them from their younger days, and which lasted until just before the close of the life of Charles. Unfortunately then came a disagreement, but it cannot affect the legal relationship that existed between them, or deprive either of his share in the assets of their partnership.

The deed from Charles to Bernard on September 3, 1893, was evidently executed by way of protection to Bernard and taken by Bernard in recognition of Charles’ equal rights in the property conveyed thereby. The reason for this transfer was that Charles, being less prudent in the management of business than Bernard, was apt to involve the partnership in obligations for which Bernard did not wish to be responsible without some security. But the realty conveyed was a partnership estate. It had been purchased for partnership purposes, and paid for by partnership funds; and notwithstanding that part of it may have stood in the name of one brother or that it had been conveyed to the brothers as tenants in common, it became, and was treated by the brothers as, partnership property. It must therefore be regarded as partnership real estate, controlled by those principles common to all partnership estates, and which have been announced in the case of Rockefeller v. Dellinger, 22 Mont. 418, 56 Pac. 822.

After attentively examining the evidence, we approve of the findings and judgment. It is seldom that a case is presented showing so much care on the part of a referee. He has laboriously entered into the accounts of the brothers, and in his elaborate findings has.worked out a most just and equitable result, supported in every respect by competent evidence and principles of fairness and right. The lower court approved of the findings, and we now affirm the judgment thereon.

3. Several errors are presented as to the referee’s rulings upon certain questions occurring on the trial. In but one instance was there possible error, but that was not of sufficient importance to warrant a reversal of the case. It arose by the referee’s sustaining an objection to a question put to a witness on cross-examination, asking if the witness was not unfriendly to the defendant. The interrogatory was perfectly competent and it was error to hold otherwise. Just afterwards, however, the witness was asked if he had not had defendant arrested once for threatening the witness’ life since the trouble between the brothers had arisen. Witness answered this question by saying that he had had him arrested, and about that time had sued defendant for $15,000 damages for slander. This answer, we think, naturally showed an unfriendly feeling on witness’ part to defendant, and sufficiently cured the error in excluding the previous question more directly put. Thus, no prejudicial error was committed.

4. The referee in the course of the trial was instructed by the court not to rule upon any objections offered to testimony. Thereafter he declined to pass upon certain objections interposed by the defendant. We have looked into these several objections and find that no harm could have been done by the testimony admitted, as it was competent for the purpose of getting at the several sums of money chargeable to the brothers in adjusting their accounts. It is a better practice, however, for the referee to rule upon objections as they are made, in order to give the objecting party the benefit of exceptions, and we advise that practice in the future; but, as no injury was done by the different course pursued in this instance, we shall not reverse the order denying a motion for a new trial.

The judgment and order appealed from are affirmed.'

Affirmed.

Brantlt, C. J., and Pigott, J., concur.