Eschweiler, J.
Were it our duty or disposition to be strict in adherence to rules of procedure there would be many grounds easily found and pointed out supporting an entire reversal of this judgment, instead of the modification [573]*573thereof we have determined to malte. There has been here a long and expensive trial; a want of the proper party in the first instance, namely, the legal representative of deceased, the administrator of his estate; an improper handling and closing of the estate; and a costly reliance upon the incompetent advice and services of an attorney at law. It is proper here to state, although perhaps unnecessary, that such attorney took no part in the hearing or proceedings below and has no present connection with the matter. Many minors are concerned: the fund out of which payments to them are to be ultimately made would be considerably lessened if further litigation be had; and we therefore deem it best for all concerned to end this matter even though the exact justice may not now be reached, such as, if proper proceeding's had been taken, might have resulted.
(1) The mill property, both real estate and personalty, prior to and at the time of the death of Richard Mattson, under our Uniform Partnership Act was partnership property. Sec. 123.05, Stats. The title to such property is of a different class and with characteristics, quite distinct from that of the title to property owned and held by individuals. A partner’s interest in the partnership is personal property and consists of his share of the profits and surplus. Sec. 123.22, Stats.
(2) Upon the death of Richard Mattson his interest, being personal property, devolved upon his legal representative. The executor of a will or administrator of an estate is such legal representative. Moyer v. Oshkosh, 151 Wis. 586, 592, 139 N. W. 378; Alexander v. McPeck, 189 Mass. 34, 42, 75 N. E. 88; Rockland-Rockport L. Co. v. Leary, 203 N. Y. 469, 482, 97 N. E. 43; 2 Bouvier, Law Dict. 1911; 3 Words & Phrases (2d ser.) 72.
(3) By express provision of the Uniform Partnership Act, sec. 123.38, Stats., the right to an account for this interest as against a surviving partner such as defendant here [574]*574accrued to the administrator, the legal representative of the deceased. The same conclusion would have to be reached were there no such express statute, for, the interest being considered as personal property, it is, under well settled law, the administrator, acting as trustee, who should take any necessary and proper legal steps to preserve and collect this interest or property rather than those ultimately getting title to the surplus after administration and by final decree. Pietraszwicz v. Pietraszwicz, 173 Wis. 523, 181 N. W. 722; Estate of Johnson, 175 Wis. 248, 252, 185 N. W. 180; State ex rel. Peterson v. Circuit Court, 177 Wis. 548, 554, 188 N. W. 645; Johnson v. Blumer, 183 Wis. 369, 375, 197 N. W. 340, 198 N. W. 277; Estate of Arneberg, 184 Wis. 570, 577, 200 N. W. 557; Schoenwetter v. Schoenwetter, 164 Wis. 131, 134, 159 N. W. 737. And yet this action, by the widow and adult heirs only, was not commenced until nearly a year after a final decree had been entered in the probate proceedings assigning the mill property as real estate and allowing the final account of the administrator. The former administrator was not a party until after the hearing before the referee and was then brought in as der fendant on application of the appellant, and when judgment is finally entered it is nominally in favor of the administrator for the amount declared due .from appellant. The appellant, however, having elected by his application, after hearing, to bring in other parties and then and there treating Hegge as presently the administrator, cannot very well now raise a question, which seems quite prominent in the record, namely, whether, after the allowance of a final account and the entry of a final decree as was shown to have been done here in the matter of the estate of Richard Mattson, Hegge can continue to be an administrator thereafter, or whether his administrative agency is not functus officio. Undoubtedly it would have been far more advisable to have had Mr. Hegge or someone else appointed administrator de bonis [575]*575non under sec. 3814 (now sec. 311.11) and sec. 3257 (now sec. 287.06), Stats.
(4) An important question is here presented as to whether the defendant, as surviving partner, accounting as he must as trustee to the legal representative of a deceased partner (sec. 123.18, Stats.), shall account for the value of the interest of the deceased partner in the partnership property as of the time of its dissolution by the death in March, 1921, with interest from such date, or as of the condition of the business when it was finally wound up after the sale in January, 1923. This question is to be determined under the provisions of sec. 123.37, Stats., providing, in substance, that when any partner dies and the business is continued by the surviving partner without any settlement of accounts, unless otherwise agreed, the legal representative of such deceased partner may have the value of'the interest at the date of the dissolution ascertained as against such surviving partner and receive as an ordinary creditor an amount equal to such value with interest.
The referee certified to the circuit court the question, so far as the minors were concerned, whether or not there could be asserted, at a time much more than a year after the time of the death and even after the sale had been made of the partnership property, an option under such statute to have the accounting as of the date of the death, having first reached the conclusion that the adult heirs had lost such option by their neglect and that of the administrator. The circuit court disposed of this question by permitting the former administrator, then made a party defendant as above recited, to exercise such option as the legal representative of the estate acting with the plaintiffs.
We find great difficulty in satisfying ourselves that the result so reached should be confirmed. However, in view of all the conditions and circumstances in this unfortunate mix-up, and there being so many minor children whose [576]*576ultimate rights and interests were so long neglected, we are not prepared to say, assuming Mr. Hegge, the former administrator., is properly before the court as administrator with power to act on behalf of the estate, that it should be considered an abuse of judicial discretion to permit him to declare such an election at such late date, and we will not therefore make any change in that regard.
On the primary question involved, viz. how much must the defendant, as surviving partner, account for to the estate of his deceased partner, we have reached the conclusion that several errors were committed to the prejudice of appellant in the statement of the account.
(5) The county court promptly after the death of Richard Mattson made an order requiring the administrator to pay $100 per month for the support of the widow and the family. No question is raised here but that such was a reasonable allowance. Nothing was paid by the administrator out of any fund coming into his hands. The partnership property as such, by sub. (3) (e), sec. 123.21, Stats., is not subject to allowances to widows, heirs, or next of kin.
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Eschweiler, J.
Were it our duty or disposition to be strict in adherence to rules of procedure there would be many grounds easily found and pointed out supporting an entire reversal of this judgment, instead of the modification [573]*573thereof we have determined to malte. There has been here a long and expensive trial; a want of the proper party in the first instance, namely, the legal representative of deceased, the administrator of his estate; an improper handling and closing of the estate; and a costly reliance upon the incompetent advice and services of an attorney at law. It is proper here to state, although perhaps unnecessary, that such attorney took no part in the hearing or proceedings below and has no present connection with the matter. Many minors are concerned: the fund out of which payments to them are to be ultimately made would be considerably lessened if further litigation be had; and we therefore deem it best for all concerned to end this matter even though the exact justice may not now be reached, such as, if proper proceeding's had been taken, might have resulted.
(1) The mill property, both real estate and personalty, prior to and at the time of the death of Richard Mattson, under our Uniform Partnership Act was partnership property. Sec. 123.05, Stats. The title to such property is of a different class and with characteristics, quite distinct from that of the title to property owned and held by individuals. A partner’s interest in the partnership is personal property and consists of his share of the profits and surplus. Sec. 123.22, Stats.
(2) Upon the death of Richard Mattson his interest, being personal property, devolved upon his legal representative. The executor of a will or administrator of an estate is such legal representative. Moyer v. Oshkosh, 151 Wis. 586, 592, 139 N. W. 378; Alexander v. McPeck, 189 Mass. 34, 42, 75 N. E. 88; Rockland-Rockport L. Co. v. Leary, 203 N. Y. 469, 482, 97 N. E. 43; 2 Bouvier, Law Dict. 1911; 3 Words & Phrases (2d ser.) 72.
(3) By express provision of the Uniform Partnership Act, sec. 123.38, Stats., the right to an account for this interest as against a surviving partner such as defendant here [574]*574accrued to the administrator, the legal representative of the deceased. The same conclusion would have to be reached were there no such express statute, for, the interest being considered as personal property, it is, under well settled law, the administrator, acting as trustee, who should take any necessary and proper legal steps to preserve and collect this interest or property rather than those ultimately getting title to the surplus after administration and by final decree. Pietraszwicz v. Pietraszwicz, 173 Wis. 523, 181 N. W. 722; Estate of Johnson, 175 Wis. 248, 252, 185 N. W. 180; State ex rel. Peterson v. Circuit Court, 177 Wis. 548, 554, 188 N. W. 645; Johnson v. Blumer, 183 Wis. 369, 375, 197 N. W. 340, 198 N. W. 277; Estate of Arneberg, 184 Wis. 570, 577, 200 N. W. 557; Schoenwetter v. Schoenwetter, 164 Wis. 131, 134, 159 N. W. 737. And yet this action, by the widow and adult heirs only, was not commenced until nearly a year after a final decree had been entered in the probate proceedings assigning the mill property as real estate and allowing the final account of the administrator. The former administrator was not a party until after the hearing before the referee and was then brought in as der fendant on application of the appellant, and when judgment is finally entered it is nominally in favor of the administrator for the amount declared due .from appellant. The appellant, however, having elected by his application, after hearing, to bring in other parties and then and there treating Hegge as presently the administrator, cannot very well now raise a question, which seems quite prominent in the record, namely, whether, after the allowance of a final account and the entry of a final decree as was shown to have been done here in the matter of the estate of Richard Mattson, Hegge can continue to be an administrator thereafter, or whether his administrative agency is not functus officio. Undoubtedly it would have been far more advisable to have had Mr. Hegge or someone else appointed administrator de bonis [575]*575non under sec. 3814 (now sec. 311.11) and sec. 3257 (now sec. 287.06), Stats.
(4) An important question is here presented as to whether the defendant, as surviving partner, accounting as he must as trustee to the legal representative of a deceased partner (sec. 123.18, Stats.), shall account for the value of the interest of the deceased partner in the partnership property as of the time of its dissolution by the death in March, 1921, with interest from such date, or as of the condition of the business when it was finally wound up after the sale in January, 1923. This question is to be determined under the provisions of sec. 123.37, Stats., providing, in substance, that when any partner dies and the business is continued by the surviving partner without any settlement of accounts, unless otherwise agreed, the legal representative of such deceased partner may have the value of'the interest at the date of the dissolution ascertained as against such surviving partner and receive as an ordinary creditor an amount equal to such value with interest.
The referee certified to the circuit court the question, so far as the minors were concerned, whether or not there could be asserted, at a time much more than a year after the time of the death and even after the sale had been made of the partnership property, an option under such statute to have the accounting as of the date of the death, having first reached the conclusion that the adult heirs had lost such option by their neglect and that of the administrator. The circuit court disposed of this question by permitting the former administrator, then made a party defendant as above recited, to exercise such option as the legal representative of the estate acting with the plaintiffs.
We find great difficulty in satisfying ourselves that the result so reached should be confirmed. However, in view of all the conditions and circumstances in this unfortunate mix-up, and there being so many minor children whose [576]*576ultimate rights and interests were so long neglected, we are not prepared to say, assuming Mr. Hegge, the former administrator., is properly before the court as administrator with power to act on behalf of the estate, that it should be considered an abuse of judicial discretion to permit him to declare such an election at such late date, and we will not therefore make any change in that regard.
On the primary question involved, viz. how much must the defendant, as surviving partner, account for to the estate of his deceased partner, we have reached the conclusion that several errors were committed to the prejudice of appellant in the statement of the account.
(5) The county court promptly after the death of Richard Mattson made an order requiring the administrator to pay $100 per month for the support of the widow and the family. No question is raised here but that such was a reasonable allowance. Nothing was paid by the administrator out of any fund coming into his hands. The partnership property as such, by sub. (3) (e), sec. 123.21, Stats., is not subject to allowances to widows, heirs, or next of kin. Nevertheless, in unquestioned good faith, the defendant did advance from time to time substantial amounts in cash and merchandise to the widow and the family. Credit for such amount was allowed by the referee but refused by the circuit court. We think the plainest principles of justice require that when the defendant is held to account to the estate he should be credited with the amount so in good faith advanced by him for the family support. We can see no justification for allowing the widow and the family to receive this money from the defendant twice, as would be the effect of the judgment below.
(6) The amount of such advances was found by the referee to be $2,774.20. This includes, however., as an inspection of the account discloses, $167.14 computed as interest on monthly balances. There is no foundation for [577]*577the allowance of such interest and it should be deducted, leaving $2,607.06 to be allowed appellant.
(7) Just before the death of Richard Mattson a carload of wheat was received at the mill valued at $2,049 and was included as one of the items of the assets of the partnership in March, 1921. As against this item defendant testified that there should be deducted $1,386.80, represented by the amount of wheat of that value for which the partnership was indebted to various farmers prior to March, 1921, for wheat that had been previously stored with the partnership by such farmers. At the hearing he presented and read from a slip showing the names of such customers and the respective amounts, and testified that such list had been prepared by him from the original book of entries, which he did not produce at the trial, it being at his new place of business in another town. Objection was interposed on the ground that the slip he presented was not the best evidence and because it appeared there was an original book of entries. The referee ruled that such was not the best evidence and that the objection should be sustained, but added: “I want this record, and it may be read into the record, and counsel may demand, if they so see fit, the production of the original record if they wish the court to consider it.” Such list was then read into the record. Such claimed credit of $1,386.80 was totally disallowed by the referee and by the circuit court, and this, we think, was improper. Defendant was very careless in the manner in which he, as trustee, kept the. accounts, even though it appears that the methods that ,had been in existence for years before in the conduct of the partnership affairs were continued. We find nothing in the. record to impeach the good faith of appellant and there is an express finding that no fraud on his part was shown. His testimony, being in the record, shows that there were such amounts of wheat due the farmers, and it does not seem just that in an ac[578]*578counting of this kind the- defendant should not be allowed for what is clearly an honest credit. While it is true that he should have produced the original book of entry, yet its production could have been insisted upon and compelled by opposing counsel, and it undoubtedly would have disclosed, if such were the fact, that the defendant was mistaken or falsifying in his testimony. Apparently neither counsel took further steps as to producing such original record, and we are not prepared to penalize the defendant by refusing him credit for an item supported by sworn testimony and against which was apparently held below as its sole discredit that the original record was not produced for inspection. The referee might properly have refused to receive his testimony in regard to this matter in advance of his producing the original record, but having permitted such testimony to be given we do not deem it equitable to disregard it, and appellant is therefore entitled to an additional credit of such $1,386.80.
(8) Defendant had two audits made of the books and accounts of the partnership: For one such he paid $15 to a local accountant. He employed a certified accountant, who made a very full audit covering the period from January 1, 1920, to February 10, 1923, after the sale, and was paid $746.88 for such. Both of these bills were disallowed. The item of $15 for the services of the one accountant should have been allowed. We cannot, however, change the result reached in the court below as to the other and very substantial bill for the auditing. It is evident that much of the services included in such bill were rendered necessary by the faulty methods used by the defendant in keeping books of account; and while he undoubtedly acted in good faith in the matter and under the advice of an attorney, yet he did not in that regard measure up to what must be expected of one who assumes the relationship of trustee towards others interested in carrying on as surviving [579]*579partner such a business. The expense was incurred without request by or. consent of the other parties interested, directly or indirectly, in the business, and, defendant having assumed such responsibility and largely for his individual interests, we do not feel warranted in placing the burden for the same in whole or in part upon the other, interested parties.
(9) The referee determined the value of the real estate, machinery, etc., at the sum of $16,000 as of the time of the death. On review by the circuit court that amount was reduced to the amount received at the sale in January, 1923, for such items, estimated by the circuit court at the sum of $13,500, — suph amount of $13,500 being but $1,500 more than the value claimed by defendant in his motion to modify the referee’s report. For want of satisfactory evidence in the record requiring us to find otherwise, we confirm the amount as fixed by the circuit court.
As .was properly suggested by the referee, the unfortunate condition of the books, accounts, and records has made it impossible to arrive at the exact condition of the partnership property and business. Future litigation could not clear up the confusion and would result in substantial depletion of the funds. We consider that it will be coming' nearer to doing justice by now finally disposing of it than by sending it back for further proceedings.
(10) We therefore restate the account as follows:
Assets March 20, 1921.
Cash in banks . $985 33
Trade accounts, face $4,903.80, less 20 %.. 4,323 04
Liability of R. Mattson to firm. 3,412 58
Inventory .:. 300 -00’
Car of wheat.. 2,049 00
Bank stock . 110 00
Real estate and machinery (as fixed by
circuit court) . 13,500 00
$24,679 95
[580]*580
Liabilities March, igei.
Due defendant ... $1,605 58
Notes payable . 300 00
Account Mrs. M. Mattson. 918 00
Due farmers for wheat. 1,386 80
■-- $4,210 38
Net worth . $20,469 57
Final balance after sale:
Net worth above . $20,469 57
Deduct further credit to defendant VO 00 CO o IN. 66-
Deduct for audit. o o 1-0 H
718 86
$19,750 71
One half thereof, R. Mattson estate. $9,875 35
From which is to be deducted: . ,
Due to partnership. $3,412 58
Allowance to family . 2,607 06
- 6,019 64
Final balance . $3,855 71
For this amount of $3,855.71, with interest from March 20, 1921, judgment should go in favor of the administrator of the estate of Richard Mattson, to be accounted for by him in the county court.and to be there distributed.
We appreciate the seeming hardship in allowing interest on this balance due the estate while denying to defendant the benefit of interest on his credit items, but the provisions of the Uniform Partnership Act cited above expressly require it as to the former item, and we find no1 authority, statutory or otherwise, that would permit it as to the latter.
By the Court.- — Judgment to be modified in the court below as herein directed. Defendant to have costs here.