46 So. 582 | Ala. | 1908
The bill in this case was filed by the appellee, as the sole heir of John 0. Tillery, against the appellants, Thomas J. Tillery, as administrator ot said John C. Tillery, and J. F. Ford, who is the surviving partner of a firm composed of said decedent and said Ford. The bill seeks to remove the estate of said John C. Tillery from the probate into the chancery court, and also to require Ford, as surviving partner, to make a complete return and settlement of said partnership affairs. Separate demurrers to the bill were filed by each of said defendants, which were overruled by the. chancellor, and separate assignments of error are here made.
The ground of demurrer insisted on by both appellants, that the bill fails to show that complainant is the legitimate child of the decedent, is without merit. The bill alleges that “oratrix is the sole heir of the said John C. Tillery, being the daughter and only child of
It is next insisted by the appellant Ford that he is improperly joined as a party defendant. The partnership assets, in this case, consisted entirely of personal property, and upon the death of one partner said assets vested in the surviving partner for the purpose of winding up the business, subject to the right of the legal representative of his deceased partner to call him to a settlement. Said surviving partner had no interest whatever in the administration of the estate of his deceased partner, and the administration of said estate had no connection with the settlement of the affairs of said partnership, except that the personal representative had the same right to call said surviving partner to a settlement as he had against any other creditor of the estate. It cannot be said that the seperate interests of the two defendants “are all connected with and come out of the single object of the suit — not dividing the remedy into two suits.” — Adams v. Wilson 137 Ala. 632, 635, 34 South. 831. The general rule is that “the personal representative is alone authorized to demand, receive, collect together, and disburse and distribute the personal assets and effects of an estate.” — Sullivan v.
The decree of the court, in so far as it overruled the demurrer of the appellant Thomas J. Tillery, as administrator, is affirmed; and in so far as it overruled the demurrer of the appellant J. F. Ford the decree of the chancery court is reversed, and a decree will be here rendered sustaining said demurrer.
Affirmed in part, and in part reversed and rendered.