18 Wis. 169 | Wis. | 1864
By the Court,
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
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 com
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.