In re Wells

2 Ohio Law. Abs. 467

Opinion

HICKENLOOPER, D. J.

Epitomized Opinion

Published Only in Ohio Law Abstract

Albert O. Wells and E. E. Wells were partners. E. E. Wells died Feb. 2, 1924, and on Feb. 19, 1924, Albert O. Wells filed a petition in the Common Pleas for a receiver to administer the property upon dissolution. On the same day, Frances Wells, widow of E. E. Wells, was appointed administratrix of his estate. On Feb. 27, Albert O. Wells filed his petition in voluntary bankruptcy as surviving partner and adjudication was made and trustee appointed. The trustee, in administering the estate, had advertised for sale certain real estate standing in the name of E. E. Wells, The Iron City Savings Bank has filed a motion to dismiss the petition in bankruptcy on the grounds that the court was without jurisdietion to adjudicate a partnership a bankrupt, where one of the partners had died prior to the filing of the petition, and that the surviving partner was estopped from filing a voluntary petition in bankruptcy by the fact that he had theretofore petitioned the State Court for an appointment of a receiver to wind up the partnership affairs. In overruling the motion, the court held:

3. Sec. 8088 GC. et seq, provides the machín-ery for the conduct of partnership business after the death of one partner, and as a part-wership is to be regarded as such an entity as to justify an adjudication of bankruptcy against individual members, the death of a member does not preclude adjudication.

2. While creaitors who have assented to a receivership in the State Court may be es-topped to file an involuntary petition, the bankrupt himself is not so estopped. .