47 Kan. 297 | Kan. | 1891
The material facts are, that for years prior to September, 1886, H. W. Laing resided on a farm in Chautauqua county, his family consisting of a daughter, intermarried with J. G. Teney, and a son named Thomas E. Laing. In April, 1886, four months before his death, the son married the defendant in error, and brought her to his father’s house, where they lived together until the death of Thomas E. Laing. During all this time, and long before the marriage of Thomas E. Laing, there was a firm doing business — buying, selling and shipping cattle and hogs — under the firm-name of Teney & Laing, with headquarters at the residence of H. W. Laing. After the death of Thomas E. Laing, his widow, Mary, this defendant in error, in consideration of $750, made a deed to an undivided half interest in a tract of land to Jacob G. Teney, this land being subject to a mortgage of $1,500; and it seems, from the evidence, that the land conveyed was the tract upon which the residence of all these parties was situated. After the conveyance, Mary Laing, the widow, resided in the state of Colorado for about 18 months, and then returned to Kansas and took out letters of administration on the estate of her deceased husband. Thomas ‘E. Laing died on the 5th day of August, 1886, and letters of administration were granted to his widow on the 5th day of March, 1888. She caused an inventory and appraisement to be made of his personal estate, as well as the partnership estate of Teney & Laing, the firm that had been engaged for years in the cattle business, on the theory or claim that her deceased husband was a member of that firm. This appraisement was made on the 29th day of March, 1888. On the 2d day of April, 1888, she made complaint and an application for citation to the probate court as follows:
“Now comes Mary Laing, administratrix of the estate of Thomas E. Laing, deceased, and makes complaint against said defendants, and says: That said defendants, Jacob Teney and H. W. Laing, have concealed and conveyed away and still conceal certain moneys, goods, chattels, effects, rights and credits of the said Thomas E. Laing, deceased, and have refused*299 and still refuse to deliver the same to said administratrix, and she therefore asks that a citation issue to said defendants to appear forthwith before this court to be examined on oath touching the money, goods, chattels, property and effects of said Thomas E. Laing, deceased, in their hands or concealed, conveyed away by them, or within their knowledge.
Mary Laing,
Administratrix of the estate of Thomas E. Laing, deceased.
“By L. C. Whitney, and McBrian & Pile,
Her Attorneys.”
ja cuauon was issued to Jacob G. Teney and H. W. Laing, and personally served on them by the sheriff on the 3d day of April, 1888, requiring them to appear in the probate court on the 5th day of April, 1888, to be examined on oath touching the moneys, property, goods and chattels conveyed away by them, belonging to the estate of Thomas E. Laing, deceased. On the 30th day of April, 1888, a notice was served on J. G. Teney and H. W. Laing that on the 10th day of May, 1888, at 10 o’clock a.m., the administratrix would apply to the probate court for an order requiring them to turn over to her the money and property in their hands belonging to said estate. On the 10th day of May the administratrix filed a written motion asking the probate court to make such an order. On that day the probate court heard the motion and overruled it, and to this order notice of appeal was given in open court, and affidavit for appeal filed, and a transcript of these proceedings was filed in the district court.
These proceedings were instituted under the first five paragraphs of article 10 of the act respecting executors and administrators. (Gen. Stat. of 1889, pp. 876, 877.) The transcript of the proceedings of the probate court filed in the district court, and made a part of the record in this court, does not show that ¶2984 was complied with, that requires “all such examinations, including as well questions and answers, shall be reduced to writing, and the answers shall be signed by the party examined, and filed in the court before which the same is taken.” It does not show that either of the persons who were cited, or any other person, was ever examined as a witness.
In the district court these plaintiffs in error moved to dismiss the proceeding because the court had no jurisdiction of the subject-matter of the proceeding, and because it had no jurisdiction of the parties defendant. This motion was overruled, and exceptions taken. The case was then tried by a jury, the question in issue being whether H. W. Laing or the deceased, Thomas E. Laing, was a member of the firm of Teney & Laing. The jury returned a verdict in the words and figures following, to wit:
“We, the jury impaneled and sworn in the above-entitled case, do, upon our oaths, find for the plaintiff, and find the property concealed to consist of 25 cows, 11 two-year-old steers, 25 yearlings, 32 two-year-old steers and heifers, 10 horses and 8 mules, 2 colts, 20 hogs, 1 wagon, 1 pleasure carriage, 3 cultivators, 2 plows, 2 sets leather harness, 1 set chain harness, and $500 worth of notes given to Thomas E. Laing for cattle sold in Missouri.” (Signed by the foreman.)
A motion for a new trial was made and overruled. A motion in arrest of judgment was filed and overruled. The court ordered the plaintiffs in error to turn over the property enumerated in the verdict of the defendant in error, and' upon their failure ordered them committed to the jail of the county until said order was complied with. The plaintiffs in error filed a motion for a stay of execution until the cause could be reviewed in the supreme court, and tendered a bond with good and sufficient sureties to stay execution pending proceedings
Under the administration laws of this state, as declared by the statutes upon executors and administrators, and as these statutes have been interpreted by this court, the primary right to settle the affairs of a partnership consisting of two persons, when one of the members of the firm dies, rests with the surviving partner; but if the surviving partner, after having been duly cited for that purpose, neglects or refuses to give the bond required, the administrator of the personal estate of the deceased partner may execute the bond 'required by ¶ 2820, General Statutes of 1889, and take the whole partnership property into possession, collect the debts due the late firm, pay those due from the late firm, and pay over to the surviving partner his proportion of the excess, if any there be. In this case the record does not show that Jacob G. Teney was ever cited to give the bond required from a surviving partner, nor does the record show that Mary Laing, as adminstratrix of the estate of Thomas E. Laing, ever executed the further bond required by ¶ 2820, General Statutes of 1889, that is necessary to authorize her to take possession of and administer the partnership estate. Both sides and all parties concede that Jacob G. Teney was a member of the firm of Teney & Laing; the controversy was whether H. W. Laing or Thomas E. Laing was the other member. As surviving partner, Jacob G. Teney had the undoubted legal right to the possession of all the partnership property at the death of Thomas E. Laing, if he was a member of the firm, until he had been cited to give bond and refused, and until the administratrix of Thomas E. Laing had given a bond that would protect his interests in the partnership estate. If H. W. Laing was the partner of Teney, of course the administratrix of Thomas E. Laing had no possible control over or interest in the partnership assets. If these proceedings were valid, and
“Upon the death of a partner the survivor becomes a trustee for all concerned. He holds the legal title to all the personal property, choses in action and other assets of the firm, and his control of all the partnership assets, real and personal, legal and equitable, is absolute and indefeasible, limited only by the purposes for which it is granted to him, and the provisions of the statute concerning partnership estates. Until the plaintiff was cited under the provisions of § 35, chapter 37, Comp. Laws of 1879, to give bond as a surviving partner, he had the right to the possession of the partnership property. [Citing Carr v. Catlin, 13 Kas. 393.] The citation was a matter personal to the surviving partner, and it was an act required to be done to divest him of his right to control and dispose of the property. Unless he was cited or voluntarily appeared in court and refused to give the statutory bond, or in some other way declined to take charge of the partnership property,-so as to waive a citation, he was never divested of his control over said property.”
In the case cited, that of Carr v. Catlin, this court says:
“The citation is jurisdictional in the sense a summons is. It brings the party into court. But when a party voluntarily appears in court, it is unnecessary to inquire what, if any, process has been served upon him.”
It is also said in this case that the surviving partner may insist on his possession of the partnership property until after citation, and a refusal or neglect to give a statutory bond.
We recommend that the judgment be reversed, and the cause remanded, with instructions to the district court to dismiss the proceedings.
By the Court: It is so ordered.
