Roys v. Vilas

18 Wis. 169 | Wis. | 1864

By the Court,

Paike, J.

The respondent’s counsel is undoubtedly right in his position that a surviving partner has the exclusive right to the possession of the assets of the firm, as against the representatives of the deceased partner, for the purpose of paying its debts and settling its affairs. And the remedy on choses in action due the firm is to be prosecuted in the name of the survivor, and the executor or administrator of the deceased partner cannot be joined in the action, merely by virtue of his capacity as such. But it can by no means be inferred from this that every chose in action belonging to the firm at the time of the death of a member, must be absolutely prosecuted by the survivor, if at all. The rule in question has no such extent. It indicates only the proper party to prosecute so long as the chose in action remains a part of the partnership property. But certainly the surviving partner may transfer the title to a chose in action of the firm, as he could transfer any other partnership property. And whenever be does do so, the remedy, as the law now is, would have to be sought in the name of the party to whom the cause of action really belonged. The plaintiff, therefore, in this case sues, not because she is executrix of the deceased partner, but because the surviving partner transferred to her in that capacity this chose in action. And the case turns solely upon the question, whether she had power thus to receive the title to it. That the executrix might dispose absolutely of the interest of the testator in the assets there can be no doubt. So perfect is this right of disposition in an executor, that he may even transfer an absolute title to a specific legacy. And it is said that at law he may even transfer the title to the property of the estate in payment of his own debt. Williams on Ex’rs, 796, 800; Williams v. Ely, 13 Wis., 5.

This being so, the power of the executrix to transfer to the surviving partner or to anybody else the interest of the deceased in the firm assets being undoubted, the question is, whether she could receive in payment a chose in action? We are not aware of any rule prohibiting this. We know of no reason why the surviving partner and the representatives of the deceased partner may not — assuming the partnership debts to be paid — make a specific division of the remaining assets. If there are securities, claims, or accounts, these may be divided as well as other things of value. Suppose a firm owes no no debts, and owns large amounts in bonds and mortgages, running for long terms, and one of the members dies. Must the survivor hold all these securities until maturity ? Is it impossible for him and the executor of the deceased to agree upon a division so that each shall take a separate portion ? As before said, we know of no rule of law forbidding it.

The suggestion that the estate might become involved in litigation is no answer, for administrators and executors may do many things that may involve litigation. They may make leases containing covenants and agreements by the lessees, all of which may give rise to litigation. They may indorse commercial paper, and do many other things by virtue of their authority and control over the estate, out of which suits may arise. When their accounts come to be settled, the question whether they have faithfully and properly discharged their trusts may be raised between them and the heirs, and the principles upon which that question will be settled are established. But certainly it cannot be said that they have no power, in making a division of the assets of a firm of which the testator or intestate was a member, to receive title to a chose in action, merely because if they did so they would have to take it for what it was worth, and might have to resort to litigation to enforce it.

The authorities cited by the plaintiff’s counsel show that the suit was properly enough brought by the plaintiff as executrix; and even if not, that the official description was immaterial and might be rejected as surplusage.

The judgment is reversed, with costs, and the cause remanded for a new trial.