Julian v. Wrightsman

73 Mo. 569

• Court: Supreme Court of Missouri
• Decided: April 5, 1881
• Status: Published

Opinion

Norton, J.

This is a case arising on exceptions made by defendant 'Wrightsman to the final settlement of plaintiff Julian, as administrator of the partnership estate of W. D. Proctor & Son. The cause was tried in the probate and common pleas court of Greene county, and a balance of $605.73 was found to be in the hands of plaintiff as such administrator, which he was ordered to pay over to Wrights-man, he being the only creditor of the estate. Erom this finding and judgment the plaintiff' appeals to this court.

It appears from the record that William D. Proctor, of the said firm of Proctor & Son, died leaving a widow, and that plaintiff Julian was the administrator of the individual estate of said Proctor, as well as the partnership estate of Proctor & Son ; that the assets of the individual estate amounted to about $101; that the assets of the partnership estate amounted, as shown by the sale-bill, to $2,175.97; that the partnership debt due the exceptor, Wrightsman, was the only debt against the partnership estate, and that it was in excess of the assets of said estate, amounting to $2,845. It also appears that the probate court made an order directing the administrator of the individual estate to pay to the widow of said Proctor $250 for her year’s support, and that said amount, together with other sums, was paid her, not out of the assets of the individual estate, but out of the assets of the partnership estate. Eor the amounts so paid, plaintiff, as the administrator of the partnership estate, claimed credit on his said final settlement, which credits the court disallowed, and charged the same to the administrator with interest thereon, and the action of the court in this respect is claimed by plaintiff to be erroneous. It is well settled that partnership assets must first be applied to the payment of partnership debts, and that until they are paid, neither the widow of an individual partner nor the individual creditors have any claims upon them. The record shows that the partnership assets in plaintiff’s hands were not sufficient to pay the partnership debts, and under the authority of the following cases, (Duhring v. Duhring, 20 Mo. 174; Willet v. Brown, 65 Mo. 138; State ex rel. v. Spencer, 64 Mo. 355,) the court was fully justified in disallowing the credit claimed, and it being a clear misapplication and misappropriation of the assets, the administrator was properly chargeable with interest, under the authority of the following cases : Clyce v. Anderson, 49 Mo. 37; In re Davis, 62 Mo. 450.

The record also shows that the plaintiff bought at the sale partnership property amounting to something over $300, and that the court charged him interest on the amount. It is insisted that this was error. In the settletlements made by the administrator he had not accounted for any interest, and it was properly charged to him on the amount of his purchase, as if on money belonging to the estate and used by him for his own purposes.

Other items claimed as credits aggregating about $61, were properly disallowed, the largest being for $22.20, which the evidence showed had been credited in a former settlement, and the evidence as to the other items equally

demanded their rejection. Judgment affirmed,

in which all concur.