Shipe's Appeal , 114 Pa. 205 ( 1886 )

Mr. Justice Gordon

delivered the opinion of the Court,

It was, perhaps, a mistake to appoint the appellant, Enos Shipe, surviving member of the firm of E. Shipe & Co., administrator of the estate of his deceased partner, David Shipe, for the double position which he thus occupies as representative of the estate, and also of the partnership, may lead to some serious complications. But as the matter now stands, we must treat the case precisely as we would were the persons, as well as the trusts, different. Death, as we know, dissolves a partnership, unless in the life of the decedent provision was made for its continuance. But when, for any reason, a dissolution occurs, the surviving or continuing partner becomes the agent of the defunct firm for the purpose of disposing of its assets, paying its debts, and settling it up, and for this purpose the title to such assets is vested in him, and with them the administrator is not permitted to meddle ; Norton’s Appeal, 1 Har., 67; Wallace v. Fitzimmons, 1 Dal., 248; and in McCarty v. Nixon, 2 Dal., 65, (note.) where an administrator had obtained possession of and collected firm notes, the surviving partner was allowed to recover judgment against him for the money so collected.

It is thus obvious that it was a mistake to introduce into the inventory of the assets of the estate the one half of the value of the goods of the firm of E. Shipe & Co., and it was also a mistake of the Orphans' Court not to relieve the administrator of that charge when requested so to do: McCourt’s Ap., 11 W. N. C., 161. We also think the surcharge of $408.47, the amount of the Culp judgment, was improper. The account was but partial, and that judgment was not brought into it by the accountant, hence, the Court could not legally pass upon what was not before it: Shindel’s Ap., 7 P. F. S., 43.

Let it be that the administrator had collected part of it, or, for that matter, the whole of it, non constat that it was not necessary to retain the money in his hands for the final settlement of the estate, and when the time comes for such final settlement he may be charged with it and all other things omitted in the partial account, but not before. The claims for commissions and counsel fees not having been made part of the account now before us, were properly rejected, and must go over for the final settlement, when, no doubt, they will be allowed.

The decree of the Orphans’ Courtis now reversed as to the surcharge of $500, value of the partnership goods, and $408.47 proceeds of the Culp judgment, and it is ordered that the said Court proceed to re-state the account. Ordered further, that the costs of this appeal be paid out of the funds of the estate.