65 Neb. 485 | Neb. | 1902
On the 5th day of November, 1874, Edward Creighton died intestate, at Omaha, leaving a large estate, consisting of both real and personal property. He left no issue, and his personal estate descended to his wife, whom we shall hereafter refer to as Mrs. Creighton. On the 20th day of March, 1875, the defendant was appointed administrator of the estate of the intestate by the county court of Douglas county. At the time of his death, the intestate was a member of the firm of E. Creighton & Co., ivhich owned a herd of cattle ranging in Nebraska and Wyoming, and in the possession of T. A. McShane. In January, 1875, Charles Hutton ivas appointed administrator of the (‘state of the intestate in Wyoming by the probate court of
This action was brought and prosecuted on the theory that the sale of the cattle to the defendant was invalid and inoperative to change his trust relations to the property, because T. A. McShane was not in fact a surviving partner of the intestate in said firm, and, because of defendant’s trust, he could not become a purchaser of the trust property in his own behalf. The plaintiff, therefore, as one of those in whose favor the trust was created by the terms of the will of Mrs. Creighton, asks, among other things, that the defendant be required to account for her share of all the said cattle, and the proceeds and profits arising therefrom.
The defense was conducted on the following lines: (1) That the order of the probate court of Albany county, Wyoming, whereby T. A. McShane was permitted to ad-' minister on the partnership estate and to wind up its affairs as surviving partner, is conclusive in this case on the question of his relation to said firm; (2) that his relations to the estate in Nebraska did not render him incompetent to purchase at a sale of its property in another jurisdiction by another administrator; (3) that by the
On the question, whether T. A. MeShane was a member of the firm of E. Creighton & Co., in our opinion, the plaintiff is concluded by the proceedings had in the probate court of Wyoming. Chapter 47 of the Compiled .Laws of Wyoming of 1876 relates to the settlement of the estates of decedents, and was in force when such proceedings were had. Five sections of that chapter are as follows:
“Sec. 45. The executor or administrator on the estate of any deceased member of a copartnership, shall include in the inventory, which he is required by law to return to the probate court, the whole of the partnership estate, goods and chattels, rights and credits, appraised at its true value, as in other cases, but the appraisers shall carry out the footing, an amount equal only to the deceased’s proportional part of the copartnership interest.
“Sec. 46. The property thus appraised, shall remain with the executor or administrator, or be delivered over, as the case may be, to the surviving partner, who may be disposed to undertake the management thereof, agreeably to the conditions of a bond, which he shall be required to give to the Territory of Wyoming, in such sum, and with such securities as is required in other cases of administration.
“Sec. 47. The condition of such bond shall be, in substance, as follows: ‘The condition of the above bond is, that if A. B., surviving partner of the late firm of-, shall use due diligence and fidelity in closing the affairs of the late copartnership, apply the property thereof towards the payment of the partnership debts, render an account, upon oath to the probate court, whenever by it
“Sec. 48. The probate court shall have the same authority to cite such survivor to account, and to adjudicate upon such account, as in case of an ordinary administrator, and the parties interested shall have the like remedies, by means of such bond, for any misconduct or neglect of such survivor, as may be had against administrators.
“Sec. 49. In case the surviving partner, having been duly cited for that purpose, shall neglect or refuse to give the bond required in the forty-sixth and forty-seventh sections of this title; the executor or administrator on the estate of such deceased partner, in giving a bond, as provided in the following sections, shall forthwith take the whole partnership estate, goods and chattels, rights and credits, into his own possession, and shall be authorized to use the name of the survivor in collecting the debts due the late firm, if necessary; and shall with the partnership property pay the debts due from the late firm, with as much expedition as possible, and return or pay to the surviving partner his proportion of the excess, if there be any.”
From the foregoing it appears that the probate courts of that territory, in addition to the jurisdiction ordinarily exercised by such courts in probate matters, had jurisdiction to adjust the account between a surviving partner and the estate of his deceased copartner, and to supervise the winding up of the partnership affairs. To that end, a surviving partner, upon compliance with the provisions of sections 46 and 47 supra, was permitted to administer on the partnership estate and was held to account after the manner of an administrator. While the. cattle in
It is next urged by the plaintiff that the defendant, by reason of his trust relations to the property, was not competent to purchase, and consequently that the sale to him was void. The argument on this point proceeds on the assumption that a purchase, by a trustee of trust property is void at all times and under all circumstances. Loose expressions of some courts and text-writers would appear to warrant that assumption, but the weight of authority is against it. Hammond v. Hopkins, 143 U. S., 224; Van Dyke v. Johns, 1 Del. Ch., 93; Litchfield v. Cudworth, 15 Pick. [Mass.], 23; Munn v. Burges, 70 Ill., 604; Boyd v. Blankman, 29 Cal., 19; Musselman v. Eshleman, 10 Pa. St., 394; Foxworth v. White, 72 Ala., 224; In re Patterson, 20 Atl. Rep. [N. J.], 486; Morgan v. Fisher, 82 Va., 417. The rule appears to be that, on the purchase of property by a trustee, the cestui que'trust has the option to take the benefit of such purchase, or to treat the sale as valid, but his decision must be made within a reasonable time. An affirmance of the sale' will be implied from an unreasonable delay. In addition to the foregoing cases, see Wiswall v. Stewart, 32 Ala., 433; Davoue v. Fanning, 2 Johns. Ch. [N. Y.], 252; Jackson v. Walsh, 14 Johns. [N. Y.], 407; Follansbe v. Kilbreth, 17 Ill., 522. Assuming, then, that the defendant stood in the relation of trustee to the property in question, — a point we do not decide, — still the sale to him, at most, was voidable, and one which the plaintiff, or others bearing the relation of cestui que trust
But it is insisted on behalf of the plaintiff that such decree Avas obtained by fraud and imposition. Were that conceded, still the decree Avould not be void, but binding until set aside in a proper proceeding. Christmas v. Russell, 5 Wall. [U. S.], 290; McRae v. Mattoon, 13 Pick. [Mass.], 53; Smith v. Smith, 22 Ia., 516. If it be urged that a par^ of the relief sought in this action is to set aside that decree, the ansAver is that the evidence fails to shoAV that the plaintiff Avas not as fully cognizant of the manner in which the decree Avas obtained at the time it was entered, as she was Avlien this suit Avas commenced. Therefore, she has not shown herself entitled to such relief, and the decree stands a bar to her recovery in this action. 'The foregoing, Ave think, disposes of this case. It may not be out of place to add that the sale took place more than tAventy-five years ago. It stood unchallenged by the plaintiff for more than tAventy years. For fifteen years of that time the fact of the sale and that it had been made to the defendant Avas, as Ave have seen, a matter of record, in a proceeding to which the plaintiff was a party, and of Avliicli she had notice by personal service of process. The sale Avas before the probate court in Wyoming, in 1877. It Avas before the county court of Douglas county in the settlement of the estate of EdAvard Creighton in 1883. It Avas, at least incidentally, before the same court in the matter of the estate of Mrs. Creighton. Plaintiff’s attention, in the nature of things, must have been invited
It is recommended that the decree of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the decree of the district court is
Affirmed.