Kahn v. Johnson , 1885 Mo. App. LEXIS 356 ( 1885 )

Opinion by

Hall, J.

The single ground urged by appellant for the reversal of the judgment of the circuit court is, that S. Kahn, administrator'of the estate of Kahn & McNeel, as surviving partner of that firm, stood in the same relation to the estate that any other person as administrator would have stood; and that, in order for him to have had allowed against the estate any claim- in his favor, an administrator pro tern, should have been appointed-, and the same proceedings should have been had .that would have been had in an ordinary. administration. The questions thus presented are the only questions which we shall consider.

A surviving partner had, at common law, the right to settle the partnership affairs. The common law right has in no way been taken away, by anything in our statutes concerning administration, though those statutes do impose upon the surviving partner certain acts to be done-and duties to be performed, which were not required at common law. Bredow v. Savings’ Institution, 28 Mo. 183; Denny v. Turner, 2 Mo. App. Rep. 57. At common law the objection here made by appellant had no foundation. Have our statutes furnished any ground for it ?

To support his objection appellant relies upon sec-' tions 68 and 207 of the Revised Statutes.

Section 207 provides that, “Any executor or administrator may establish a demand against his testator or intestate, by proceeding against his co-executor or co-administrator in the manner prescribed for other persons. But if there be no co-executor or co-administrator, he shall file his claim and other papers, and the court shall appoint some suitable person to appear and manage the defence.” Section 68 provides that, “The administration upon partnership effects, whether by the surviving partner, or executor or administrator of the deceased partner, shall, in all respects, conform to administrations in ordinary cases, except as otherwise herein provided. * * * ” But it is provided in section 65 of the Revised Statutes that, ‘ ‘ In all cases where the surviving partner administers upon the partnership effects, he shall have power to pay off demands against the partnership, without requiring the same to be exhibited for allowance to the court, and such court shall allow such partner, in his settlements, as credits, all demands which he may thus discharge, if it shall be satisfied with the justness of the demands. * * * ” It is clear, that under these statutes, had the partnership consisted of three persons, and upon the death of McNeel, the other surviving partner and S. Kahn had entered upon the administration of the partnership estate, a.s the surviving partner, Kahn’s co-administrator could have paid Kahn’s claim against the firm without it having been first exhibited to the court for allowance, provided always that section 207 has any reference or application to the administration upon a partnership estate by the surviving partners. Because, without creditors of the estate generally exhibiting their claims to the court for allowance, the surviving partners, administering, could pay the claims (said section 65 and Denny v. Turner, 2 Mo. App. 55), and section 207 permits the administrator to establish, against his co-administrator, his demand “ in the manner prescribed for other persons,” establishing their demands against both the administrator and his co-administrator. These statutes would thus result in what the legislature manifestly never intended. One result would be that the claim of the surviving partner would be upon an equality with the claims of strangers against the partnership, which would, in case of insolvency of the partnership estate, make it necessary for the surviving partner to return to the other creditors the amount of his claim or so much thereof as might be necessary to complete the payment of those claims not paid in full. In fact, as in the administration of a partnership estate by the surviving partners, they may exhaust the funds of the estate in the payment of certain claims to the exclusion of all other claims against the estate (Crow v. Weidner, 36 Mo. 412); the surviving partner might, alone of all claimants, receive payment of his claim, but which, however, the other claimants could compel him to repay to them. This, as a matter of course, the legislature never intended to accomplish, and no such construction can be placed upon these statutes by us.

Another result would be to give to the co-administrator exclusive power of administration as to a certain part of the estate. He would keep his own separate accounts. He alone would make certain payments. He alone would be entitled to certain credits. As to one part of the estate, the partner, with a claim, and his surviving partner would be co-administrators of the estate, together having absolute power as such administrators ; as to another part of the estate, the - surviving partner, without a claim, would alone be the sole administrator of the estate, possessing the power of such administrator Such was clearly not the object of the legislature.

The legislature simply intended the co-administrator, if such there was, to do that and only that, which the administrator pro tem., appointed by the probate court, should do, if there was no co-administrator. The administrator pro tem. the court should appoint “ to appear and manage the defence; ” not to manage the estate, except as to the mere defence against the claim in court, not to pay the claim. The power and duty of the co-administrator and the administrator prro tem. are the same, identically the same; and clearly have no existence except in the ordinary administration of estates.

The allowance of the claim as a credit in favor of S. Kahn bound only the partnership estate, and was in no manner binding upon the individual estate of McNeel. Burton v. Rutherford, admr., etc., 49 Mo. 258. The allowance of the claim against even the partnership estate could not in fact be made except subject to all the other claims against said estate. - We are of the opinion that the claim was presented and allowed against the estate in a proper manner. In this case, after all other claims against the estate of the partnership had been satisfied, the probate court allowed the surviving partner that which was due him as shown by the books of the firm. In so doing the probate court committed no error.

Section 207 has no application to administration by a surviving partner of a partnership estate ; such administration is governed exclusively by section 65.

The judgment of the circuit court is affirmed.