Vincent v. Martin , 79 Ala. 540 ( 1885 )

STONE, C. J.

So far ,as the present bill seeks to review the final decree of the Probate Court,.for alleged errors of law and fact committed in the probate settlement, both the pleadings and proof fail to make a case for relief. If any errors were committed in the settlement, there is an entire failure to show they were “ without any fault or neglect ” of the distributees, as this court has uniformly interpreted those words. Code of 1876, § 3837; Humphreys v. Burleson, 72 Ala. 1; Lynn v. Wann, Ib. 43; Stoudenmire v. DeBardelaben, Ib. 300; Cawthorn v. Jones, 73 Ala. 82; Massey v. Modawell, Ib. 421; Boswell v. Townsend, 57 Ala. 308; Bowden v. Perdue, 59 Ala. 409; Otis v. Dargan, 53 Ala. 178.

Martin and Yincent, the intestate, were mercantile partners at the time the latter died. Martin, with another, became administrator of his estate.. Yincent left a widow and two infant children, his distributees. The latter were without guardians, so far as we are informed. When Martin and his co-administrator, Kidd, filed their account-current for final .settlement of the administration in the Probate Court, and when they assembled for the purpose of making the settlement, there had been no settlement of the partnership accounts. Martin, being surviving partner, and administrator of his deceased co-partner’s estate, could not settle with himself; and the settlement of partnership accounts inter se being without the jurisdiction of the Probate Court, that preliminary step in the administration settlement could not be taken in that court. 1 Brick. Dig. 440, §§ 182, 183, 188; Hays v. Cockrell, 41 Ala. 75; Carswell v. Spencer, 44 Ala. 204; Tankersly v. Pettis, 61 Ala. 354; 5 Wait’s Ac. & Def. 149. In Foster v. Wilber, 1 Paige, 537, 542, it was said by Chancellor Walworth, “It would seem that, in such a case, the Court of Chancery alone was competent to make a decree settling all these eonflicticting rights, so as to do justice between the parties.” There was no attempt to settle the partnership account in the Probate Court, in this case.

Before the probate settlement was entered upon, some steps were taken with a view to settlement of the partnership account. Martin represented himself, and Mrs. Yincent was represented by counsel, and by a relative and friend, said to be a good accountant. Her counsel had also been appointed guardian ad litem for the infant children, to represent them in the probate settlement. As such guardian ad litem, however, he had no authority to represent them in the settlement of the partnership dealings, and, being without guardians, they could not have an attorney. The form of a settlement of the partnership transactions seems to have been gone through with, and the testimony tends to show it was, at the time, satisfactory to the attorney, and to the friend of Mrs. Vincent. It was not, however, a binding settlement, because Martin could not settle with himself, and because no one was authorized to bind the estate of Vincent, nor to represent the interests of the infant distributees.

We will not say that, if another had been Vincent’s administrator, Martin could not have settled with him, without invoking the powers of the Chancery Court. Nor need we decide what would have been the result, if the infant distributees had been represented by a legally appointed guardian of their estates. What we do decide is, that Martin, by reason of the dual relation in which he was placed, could make no binding or legal settlement with himself, and the partnership accounts must be regarded as unsettled.

It is contended by the appellant, that by the terms of the articles of partnership, the death of Mr. Vincent worked no dissolution, but that the firm continued for three years from its formation, April 1, 1871. The language of the article of partnership, on which this argument is rested, is as follows : “ It is further agreed, that if either of the parties should die before the expiration of said time, the surviving partner shall continue the business for the unexpired term of three years.”

It may admit of grave question, whether, in strict language, a partnership can be continued in identity after the death of one of its members. Parsons gives it as his opinion that it can not, and his reasons for this opinion are difficult to answer. Pars, on Partnership, *438, *439, *452, and notes. Even if there be a provision authorizing such continuance, this necessarily works some change in the personnel, for a dead man can neither make nor enforce contracts. Hence, if the direction be that the personal representative, or some member of the family of the partner so dying, shall take his place and continue the business, this, it would seem, could scarcely be called a continuation of the old firm, but the formation of a new one, as its successor. And certainly the person designated or appointed to take the place of the partner dying, could not, without his consent, be compelled to accept the position, and assume its cares and responsibilities. Would not this constitute it rather a new firm, than a continuation of the old one? Consult, in this connection, Knapp v. McBride, 7 Ala. 19, 28, and authorities cited; 5 Wait’s Ac. & Def. 137, and references.

It is clear, however, that partners can make a valid and binding agreement, that in the event of the death of one or more .of the members of the firm, the business shall be continued by the survivor, employing for the purpose the united capital which had constituted the partnership effects. That is precisely what we think the contract of partnership in this case contemplated. The result of such agreement and direction is, that the survivor can fasten no new debt or liability on the estate of the deceased partner, not previously carried into the adventure as part of the stock. He can only use and employ the partnership effects, as they were in the firm when his co-partner died. Over these, however, his control is unlimited, so long as he acts in good faith, with proper diligence and discretion, and does not depart materially from the line of business in which the partnership had been engaged.—Ex parte Richardson, 3 Madd. Rep. 138; Garland, Ex parte, 10 Ves. 110; Catbush v. Catbush, 1 Beav. 184.

After the settlement of their administration by Martin and Kidd, Mrs. Vincent was appointed administratrix of Vincent’s estate, and in due timé filed this bill in. her representative character. We have seen that, as a bill to correct errors of law and fact in the administration settlement proper, it is without equity. It follows, that Kidd was improperly made a party to this suit. The bill should be so amended as to strike out his name; and this should be at the costs of the complainant. As a hill to secure a settlement of the partnership accounts, including a continuation of the business -for three years, commencing April 1, 1871, complainant is entitled to relief, and the chancellor will order an account to be taken on the principles declared above. Martin will receive a credit so far as he has accounted for partnership effects.

Heversed and remanded.