Executors of Loop v. Adminstratrix of Loop

1 Vt. 177

• Court: Supreme Court of Vermont
• Decided: January 15, 1828
• Status: Published

Opinion

Hutchinson, J.

delivered the opinion of the court. The

court have considered the arguments, of counsel and have come to the conclusion to accept the report. The terms of the partnership do not any where appear. It does not appear that Joseph JB. Loop was to have half of the profits of the trade, aside from the will. And he being a minor at the time, his services, prima facie, belonged to his father. But, it is probable there was an understanding between them that the young man was to have half the profits : but he was furnished with no evidence of it. And the farther furnishes the evidence by the will, and at the same time, to show conclusively that this is tine half he mentions in his will, he adds, “the other half of the profits and the whole stock are to be considered my property.” That is,in dividing the estate it is to be so considered. This is the only fair construction of that clause of the will. The auditor has done right, therefore, in allowing the estate of Joseph B. Loop one half only of the profits of said trade. With regard to the infancy, die facts found and reported by the auditor showing the acts of the said Joseph,after he became of age, are rather too vague to warrant the conclusion drawn, aside from his character of executor. But in that character he held all the property he has now to account for, from his fathers decease till his own. It was his duty to act the part of a faithful executor in severing this property of his father from his own, and keeping it safely, ready to account, and a breach of this trust can never be covered by infancy. The auditor has done right in holding him to account, the same as though as he had been of full age. The report is accepted in toto.