90 Ala. 81 | Ala. | 1890
Word Bros., composed of Samuel P. and Charles P. Word, were merchant-copartners. The firm was dissolved by the death, intestate, of Samuel P., in November, 1888. After forty days, Charles P. Word was appointed administrator of Samuel P.’s estate. Belle Word is the surviving widow of Samuel P., but he left no descendants. If he left brothers and sisters, or their descendants, other than said Charles P., the record does not inform us of it. It is silent on the subject of such collateral relations.
The present bill was filed by Belle Word, March 15,1889, about four months after the death of her husband, and it makes Charles P. sole defendant, suing him both as an individual and as administrator of Samuel P. It avers that the firm owed no debts, and its purpose, as shown by the prayer, is to obtain a settlement of the partnership accounts between the partners, and to have Charles P. account for, and pay over the share of' Samuel P., his deceased copartner. There is no other specific prayer for relief, and no prayer for injunction or other restraining order.
The defendant demurred to the bill, assigning many grounds, and pleaded that the suit was prematurely brought, being instituted within less than six months after the grant of admin
Framed, as the present bill is, for a settlement of the partnership, the suit was prematurely brought, and the plea ought to have been sustained. There is an additional phase of this question. Mrs. Belle Word claims as surviving widow and distributee of her deceased husband, and she can not compel the administrator, against his consent, to settle and distribute that estate, until the expiration of eighteen months after his appointment.—Carroll v. Richardson, 87 Ala. 605.
The second ground of the demurrer to the bill ought to have been sustained. All the collateral relations entitled to share in the distribution of Samuel P.’s estate were proper and necessary parties; and if there were none other than complainant and defendant, that fact ought to have been averred.. — Code of 1886, §| 1915, 1917, 1919, 1924.
The seventh and ninth grounds of demurrer ought to have been sustained. ■ The averments of the bill, in several particulars, are not specific enough.
If the partnership interests were equal (the law presumes they were, unless the contrary is averred), the eighth ground of demurrer is not well taken. If there were any peculiar, exceptional provisions in the agreement of partnership, on which exceptional relief is prayed, they ought to be stated.
If the livery-stable, its stock and vehicles, were the individual property of Samuel P., then Charles P. has no right to interfere with them as surviving partner. As administrator, however, he could exercise such powers as the statutes confer upon him. And the same remark is applicable to the household and kitchen furniture. The widow’s right of exemptions, however, may be asserted in these individual properties, and if necessary to their complement, in Samuel P.’s share in the partnership effects, after the debts of the firm are paid. These individual properties, if owned entirely by Samuel P., have nothing to do with the settlement of the partnership account between the partners, unless, after exhausting all the partnership effects, a balance is found due from the estate of Samuel P. to the survivor.
The purpose of the bill is to charge Charles P. Word, as surviving partner, with the partnership effects, to the control of which he succeeded on the death of Samuel P. In this phase of the bill, it is only with effects he acquired control of by virtue of his survivorship, that he can be held to account. Beyond the security found in any partnership effects that may remain
The bill charges the defendant with conduct that can not be justified. Although the law, on the death of his copartner, clothed him with the legal title to the partnership effects, they did not become his in individual right. He took them in trust, and subject to a lien, for the purpose, first, of paying all debts of the partnership, and, second, of accounting to the estate of bis deceased copartner for the share to which it was entitled. 2 Lindley Partnership, (Amer Ed.) bottom pages, 597, 598, 600-1, 993, 1007. If the survivor neglected to take an account of stock, and fails to keep an account of sales, he does not properly execute the trust the law has cast upon him. And if he is acting thus negligently or faithlessly, and there is danger that the estate of his deceased copartner will suffer by reason of his inability to make good his default — or rather, that there is danger that he can not be compelled to make it good — then, upon a proper bill, with proper averments and proper prayer for relief, we will not say the effects should not be placed in the hands of a receiver, or the said Charles P. placed under a bond to faithfully account, as the chancellor may deem expedient and necessary. — High on Receivers (2d Ed.) §§ 476-7, 489, 490, 493, 531-2.
In seeking the appointment of a receiver, the rules we have heretofore declared should be carefully conformed to.—Briarfield Iron Works v. Foster, 54 Ala. 622; Hughes v. Hatchett, 55 Ala. 631; Weis v. Goetter, 72 Ala. 259; Moritz v. Miller, 87 Ala. 331; Thompson v. Tower Man. Co., Ib. 733; Dollins v. Lindsey, 7 So. Rep. 234; 89 Ala. 217. Proceedings, such as herein last indicated, may be instituted' at any time after the trust is entered upon, provided the conditions exist which authorize the court to interfere with the possession of the surviving partner.
Reversed and remanded.
