Berry v. Powell , 18 Ill. 98 ( 1856 )

Scates, C. J.

Powell, as administrator of Masters, a deceased partner of L. Berry, filed this bill for an account which was taken before the master, and a decree for $449.94, balance due estate of deceased. This is one half of the balance struck by the master, on stating an account with the plaintiff, L. Berry, as sm'viving partner. There appears to be a balance, also, due from the intestate, of $87.18, on stating an account with him. One half of this, or $43.59, would belong to the surviving partner, and should be deducted from the $449.94, due from Berry to deceased, which would leave a balance of $406.35.

The decree, corrected by reducing the amount to this sum, will be affirmed.

This balance in the hands of decedent seems to have been inadvertently overlooked by the court below.

The principal ground of controversy before us, involves the question of the smwivor’s right to have an individual account against his deceased partner, taken into the account, and the amount deducted out of any balance found in his hands as surviving partner. Were this allowable, the survivor would be enabled to obtain full payment out of the estate of an insolvent partner, and to the exclusion of all other creditors. This is clearly contrary to the general policy of our laws in relation to settlement of estates. Bev. Stat. 1845, p. 561, Sec. 115. .

Where mutual accounts upon mutual dealings exist, the balance of account becomes the debt due from the one to the other; and such only is demanded in practice under our practice act. Ibid. p. 416, Sec. 19.

But partnership interests, on taking partnership accounts in equity, are on a different foundation.

We need not determine here what power a court of equity might have to adjust the individual claims of partners against each other, by taking them into account, on settling partnership dealings. Here the bill discloses the fact of the insolvency of the estate of the deceased partner. The allowance of the individual indebtedness might, in principle, defeat all other creditors, and absorb the estate. The existence of a mortgage security cannot vary or change the principle; for if the partner have this right, it must exist independent of his holding a mortgage security.

Whatever might be the effect of the decree as it now stands, it will be so amended as not to include an adjudication upon the rights of the parties to the mortgage.

As there is no reason' to remand this cause for correction of the decree, decree will be entered here for foiu’ hundred and six. dollar's and thirty-five cents.