Kilgo v. Van Dyke

Lochrane, Chief Justice.

This bill was filed by a copartner against the widow and minor children of a deceased copartner, to recover a balance due on account, and to subject property set apart for a homestead, to the claim. The Court overruled a demurrer filed to the bill, and we reverse the judgment overruling the demurrer, for the reason : 1st, That it was necessary to make the administrator a party, whose right of defense to the claim and settlement of the copartnership transactions between the complainant and his decedent, is a matter of legal duty devolved upon him by the law. 2d. We are of opinion, upon the facts stated by the bill and admitted by the demurrer, that complainant’s claim is clothed with no right in equity to interpose and deprive the widow of her right of homestead in the estate left by her deceased husband; for the uses of the funds, as alleged by the copartner in his lifetime, does not bring the claim within the exceptions of the Act. It was neither money borrowed, labor done, nor material furnislied, etc., thereon, and we are therefore of the opinion, and so adjudge, that the judgment of the Court below be reversed.

Judgment reversed.