Cole v. Graves

HEDRICK, Chief Judge.

The only question presented on this appeal is whether the trial judge was correct in concluding that the partnership between plaintiffs father, Waymon H. Cole, and defendant dissolved upon the former’s death and that “ITEM IV” of his will “constitute[s] a settlement of and disposition of his partnership interest in a manner other than required by the partnership act.”

G.S. 59-61(4) of the Uniform Partnership Act provides that a partnership is dissolved “[b]y the death of any partner, unless the partnership agreement provides otherwise.” G.S. 59-84 of the Act further provides:

When the original articles of partnership in force at the death of any partner or the will of a deceased partner make provision for the settlement of the deceased partner’s interest in the partnership, and for a disposition thereof different from that provided for in this Chapter, the interest of such deceased partner shall be settled and disposed of in accordance with the provisions of such articles of partnership or of such will.

In the present case, there was no written partnership agreement. Therefore, the trial judge was correct in concluding that the partnership between Waymon H. Cole and defendant dissolved on the date of the former’s death. Furthermore, since there was no partnership agreement which provided for the settlement of the deceased partner’s interest in the partnership, the trial judge was correct in looking to the will of the deceased partner to determine the disposition of his interest in the partnership.

We hold that the plain language of “ITEM IV” of the will of Waymon H. Cole settled and disposed of his interest in Cole Pottery Company pursuant to G.S. 59-84. Thus, the trial court did not err in entering summary judgment in favor of defendant. The judgment appealed from will be affirmed.

Affirmed.

Judges WELLS and ORR concur.