Shaw

16 A. 662, 81 Me. 207

• Court: Supreme Judicial Court of Maine
• Decided: January 14, 1889
• Status: Published

Opinion

Daneobth, J.

These three cases are appeals, by as many different persons, from the same decree of the probate court for the county of Penobscot appointing Elliot Walker administrator on the estate of William Shaw.

The petition alleges that Shaw was a citizen of Massachusetts; that he died “August 31, 1882 intestate, seized and possessed of personal estate in said county, exceeding twenty dollars in value, which ought to be administered according to law; that said deceased died leaving real estate in said county of more than twenty dollars in value, and owing debts to more than the amount of twenty dollars, which are still unpaid.”

Among the reasons of appeal there is one in each case, and the principal one, which directly denies the allegations in the petition so far as they relate to property, and thus is raised a distinct issue upon that point.

There are, however, some preliminary questions raised to be first disposed of.

It is claimed that the appellants are not, in a legal sense, so aggrieved as to entitle them to a hearing. To give them this right it is claimed that the decree must directly and unfavorably affect their rights of property, or interests ; that the court of probate is not, but a common law court is, the proper tribunal to settle titles to real estate, and numerous cases are cited to sustain this view. No doubt, this as a general statement of the law is correct and the cases cited are sound law, under the facts upon which they rest. But they do not apply here. In this case, the real estate relied upon as authority for granting the petition is claimed, not by an independent or adverse title, but by a title traced directly to the intestate, and acquired through his representatives, by what they claim to be a legal and valid process. If it should prove so there will be no ground for granting the petition. The title to this real estate is therefore in issue and the court must pass upon it in order to settle the question in issue. A very considerable portion of the argument for the petitioners, is to show that this property is now in a condition to be administered upon as the property of the deceased. If the decree stands it will be an authority for the administrator to administer the property in question so far as it may be necessary. Whatever rights the appellants might have in a court of law, the decree, if it has no other effect than to send the parties to expensive litigation, will be sufficiently direct in its effect upon the title to authorize these appeals. Allen v. Smith, 80 Maine, 486; Bancroft v. Andrews, 6 Cush. 493, 496; Paine v. Goodwin, 56 Maine, 413: Bates v. Sargent, 51 Maine, 425; R. S., c. 63, § 29.

The case shows that Clark is administrator at the intestate’s last place of residence. As such, his right of appeal is beyond question. Wiggins v. Swett, 6 Met. 197; Smith v. Sherman, 4 Cush. 411. The widow, having an interest in the estate, would have the same right of appeal as the administrator.

Another question, raised in this connection, is that the reasons of appeal alleging a want of jurisdiction in the probate court, are felo de se and the appeal should be dismissed without further consideration. This would clearly be the result if the want of jurisdiction appeared upon the record. White v. Riggs, 27 Maine, 114; Osgood v. Thurston, 23 Pick. 110. Possibly, the same result might follow if an absolute want of jurisdiction should appear on investigation. It is quite evident that there would be no propriety in this court’s affirming or reversing a void decree. Still the effect would be the same as a reversal. If the appeal is dismissed, for want of jurisdiction, it must in effect be a declaration of the nullity of the decree, and would leave no basis for any authority in the administrator appointed. But the cases cited do not apply to this case. In Bank v. Young, 53 Maine, 555, there are some remarks tending to show that the principle might be applicable in a case like this. But they are dicta only and the dismissal of the appeal rests upon a different ground. In cases like this, jurisdiction of the subject matter is given by the statute. Whether an administrator shall be appointed, is determinable by the court and the result depends upon the facts as they shall be found. Moreover, the statute makes such finding conclusive and forbids any inquiry into the question of jurisdiction, “except in cases of fraud, so far as it depends * * * upon the locality, or amount of property, * * in any proceeding whatever, except on appeal from the probate court in the origiual case, or when the want of jurisdiction appears on the same record.” This seems tantamount to a direct grant of the right of appeal. R. S., c. 63, § 7.

Another preliminary objection is that the appointment of Walter D. Shaw was an adjudication of the question now at issue and conclusive upon all parties. The case shows that he was appointed upon his own petition in December 1882. That appointment was upon the condition of his giving a bond which he never gave. He never entered, or attempted to enter upon the duties of his office. He therefore in effect declined to accept the office, and the appointment was the same as if it had never been made. If he had qualified, the decree would have been conclusive as to his authority in all proceedings in which he was a party but no further. He is not now a party. At the time of his appointment, these appellants were not, nor were they in a condition, to be parties. Hence, though the decree might have become conclusive as to the title to the office, it would not have been, conclusive as against these parties as to the existence of assets even at that time. Brigham v. Fayerweather, 140 Mass. 411.

Besides, the residence of the deceased is not in issue here, hut the location of his property. There may have been assets at one time and not at another. If he had left assets at his decease and all had been removed, or legally disposed of, before the date of this petition, it would furnish no reason for the appointment of an administrator at this time. Another pertinent suggestion is, that we find in the decree no allegation of any assets, or of the truth of any allegations in the petition, nor does the petition show any real estate, the existence of which seems to be the question at issue here.

This brings us to the main question in issue in this ease.

The petition alleges in substance that William Shaw, a resident of Massachusetts, died August 31,1882 seized and possessed of personal and real estate of the requisite value which ought to be administered upon, and asks that Elliot Walker be appointed “administrator of said estate.” One of the reasons of appeal is, in effect, that he left no such property.

The authority of the probate court to grant administration is found in E. S., c. 63, § 6, and includes “the estates of all deceased persons, who at the time of their death, were inhabitants or residents of his county, or who, not being residents of the state, died leaving estate to be administered in his county, or whose estate is afterwards found therein.” The limit of this authority is found in E. S., c. 61, § 1. “No administration shall be granted on the estate of any intestate deceased person, unless it appears to the judge that he left personal estate to the value of at least twenty dollars, or owed debts to that,amount, and left real estate of that value.”

Hence, in order to grant the prayer of this petition it must affirmatively appear to the court, that at the date of the petition personal property of the deceased was found in the county of Penobscot, of the value of twenty dollars, or that he owed twenty dollars, and left in that county real estate to that amount; and that his interest in it was such, that it was liable to be administered upon as his. In other words that the property both real and personal must be assets of the deceased, liable for his individual debts, or to be distributed among his widow and heirs, — for an administrator as such, can do nothing else. If the deceased held the property in trust, it might indeed go to his representatives, not to be administered upon, but to be disposed of under the trust. In one case, the court of probate would have jurisdiction, in the other a court of equity. Trecothick v. Austin, 4 Mason, 16.

All the material facts in this case are unquestioned. It appears that the deceased with his two brothers, neither of whom were residents of this state, had entered into a copartnership for the purpose of doing an extensive business in this, as well as in several other states and Canada. The firm had occasion for a large amount of personal and real estate, were the owners of both kinds of property and a considerable portion of each was in the county of Penobscot at the death of the deceased partner. There is no proof that the deceased had any personal properly other than that which belonged to the partnership. As that has been disposed of before this petition was filed, and as the result has shown was insufficient to pay the partnership debts, the deceased had no such interest in that as could be considered as bearing upon the question presented by this petition. Even if the property could now be found, in the county and identified, he had no such interest in it as would authorize an administrator to administer upon it, as his individual estate, it being insufficient to pay the company debts.

The real estate is somewhat differently situated. The record title, to some or all of that, stands in the name of the deceased. But the facts show that it was bought with partnership funds •for the company, and to be used for company purposes. By well .settled law it must be considered, that, though the deceased held the legal title he held it in trust, not for the creditors alone, or specially, but for the firm. Crocker v. Crooker, 46 Maine, 250; Buffum v. Buffum, 49 Maine, 108. This trust is also distinctly declared in the articles of copartnership. It also appears that all this real, as well as the personal estate, is insufficient to pay the partnership debts, and except this partnership property the deceased had no other, real or personal, at the time of his death, in the county of Penobscot and none has been found since. He clearly then bad none which, could, or can be administered upon as his private or individual assets, none which an administrator could legally appropriate to the payment of Iris private debts, ox distribute to his heirs. This would seem to be decisive of this case.

But while it is conceded that an administrator must first be appointed for the deceased member of the firm, it is claimed here that it should be done, because there are partnership assets to be administered upon. But assuming it to be true that there are partnership assets, the result claimed by no means follows. The fact of partnership assets is no legal reason for appointing an administrator. On the other hand, the express terms of the statute from which the probate court gets all its authority, excludes it. The appointing power is the same whether the deceased was a member of a firm or otherwise. The administrator is not appointed for, or with reference to any firm, and if the duty of settling the partnership affairs devolves upon him it is only as an incident of his office, and after the surviving partner has refused to give the required bond. The only power the court has to appoint rests upon proof of individual assets.

The fact that the deceased held the legal title incumbered, as. it is, with a trust which swallows up the whole, affords no proof of assets, for after the trust is satisfied there is nothing left for the individual. The trust must be disposed of in another way as held in Crosby v. Leavitt, 4 Allen, 410. The title would go to the legal representatives, incumbered with the trust, and not as assets to be administered upon. This, if not self evident is-abundantly sustained by the authorities cited in the argument..

But further, even were it competent for the court to consider any evidence of partnership assets, as bearing upon the question at issue here, there is not only a failure to show any such assets now existing, but from the case it does appear affirmatively that whatever the firm had, at the death of William, have been long since disposed of and that before the date of this petition.

In the articles of copartnership, it was agreed, that in case of' the death of one or more of the members of the firm, “the survivors or survivor shall be allowed the term of five years, in, or within. which, to continue and close the business of this copartnership.” This agreement gave the survivors the same power to continue and manage the business of the firm, as when all were living, including the property interest which the deceased member had in it, and making that property liable to debts subsequently contracted, as well as those then existing. Burwell v. Mandeville, 2 How. 573, 576 ; and the numerous cases cited in the argument. That such is the well settled general rule of law cannot now be doubted.

But it is claimed that, in this state, such an agreement is void because it conflicts with the express provisions of the statute, c. 69; R. S., and with the rights of creditors. But this contract was made by parties, not residents of this state, and therefore not .amenable to its statute laws. The contract was therefore binding ■upon the parties and, as such, would be enforced in this state unless contrary to its laws, or public policy. Felch v. Bugbee, 48 Maine, 9. It contravenes no public policy nor any statute of the .state. It takes away none of the rights of creditors; was not intended, nor did it have the effect to hinder, or delay them, in the slightest degree. The statute gives them no special lien upon ■the property until one was created by legal process, and it was ■open to attachment after the agreement went into effect as well as before. R. S., c. 71, § 23, makes certain lands of the deceased liable to be sold for the payment of debts, and doubtless the proper and perhaps the only way for the creditor to avail himself ■of this provision is through an administration and under a license. But the enumeration of the different description of lands liable, omits such as may be holden in trust and the inference from this is, that they were intended to be excluded.

The only ground of conflict with chapter 69 must be found in .§ 1 if anywhere, which provides that the administrator of a .deceased member of a firm “shall include in the inventory the property of the partnership,” and in a certain event administer it. But this offers no legal proof that an administrator is needed for the deceased partner and furnishes no reason why one should be appointed. But if that provision has any reference to a foreign firm, it must have a reasonable construction. It contemplates a dissolution. If there is no such administrator it clearly cannot be enforced. It is quite as evident that if there is no dissolution, it cannot be enforced. The use of the words administrator with the act of administration in the probate court, indicates that there must first be a dissolution, a closing up, a cessation of business. The law did not and could not intend to interfere with a living partnership and stop its business. As said by Story, J., in Burwell v. Mandeville, supra, p. 576. “By the general rale of law, every partnership is dissolved by the death of one of the partners. It is true, that it is competent for the partners to provide by agreement for the continuance of the partnership after such death; but then it takes place by virtue of such agreement only, as the act of the parties, and not by mere operation of law.” So here, without the agreement, the partnership would have followed the general rule of law and the dissolution would have taken place at the death of the member. But under the agreement, the firm is continued, by the act of the parties and the operation of the statute is postponed, at least until a dissolution does take place. This can be no violation of the statute, for in addition to the reasons already given, it may be suggested that no time is fixed in the statute when the administrator shall take possession and the inference is, if necessary at all, it should be-after a dissolution of the firm.

In this case, such a possession is not necessary, nor can it legally be taken, for by the very act of dissolution all the partnership property was disposed of and the creditors provided for so far as it was possible to do soi The assignment was necessarily a dissolution of the firm. By that assignment, the creditors whether they had a lien or not, took all the property there was. They could have had no more under an administration. The creditors therefore have no reason to complain. It is a general assignment, making no preference as to creditors. It conflicts with no statute or policy of the state. The former assignment law of this state has been repealed. Smith v. Sullivan, 71 Maine, 150. And it cannot conflict with the insolvent law because it places no obstacle in the way of enforcing that. If the parties were within the jurisdiction of this state, the insolvent law could be invoked the same after as before tbe assignment. Tbe only real objection to it seems to be in effect, that it gives no priority to the creditors of this state. But why should it? None of the statutes referred to, gives such a preference, not even that under which an administration is claimed. The insolvent law, if that could have and had been invoked, would not have allowed it. During the continuance of the partnership, the firm could have sold any portion of their property, for the payment of debts either in or out of the state. If they could have sold in parts for that purpose they could sell it as a whole for the same purpose. Train v. Kendall, 137 Mass. 366; Boise v. King, 108 U. S. Sup. Ct. 379, and numerous cases cited by counsel. Upon the propriety of giving a preference, to creditors within the state, to a priority of payment from the state property, we refer to the remarks of Parker, C. J., in Davis, Judge v. Head, 3 Pick. 128, beginning on page 143. These remarks, though not necessary to the decision in that case, are entitled to great consideration and certainly to no less, under the circumstances, developed in the case at bar.

That this assignment was valid in Massachusetts appears from the case of the Globe Bank v. Wyman & als. the records of which are made a part of this case. It has been confirmed by the decree in Clement v. Shaw & als. heard in Penobscot county, under which all the partnership real estate in this state has been disposed of in conformity with the rights of all parties. Whether it will defeat the attachments of resident creditors we do not now deem it necessary to decide.

Decree of probate court reversed.

Petebs, C. J., Libbey, Emeby and Fosteb, JJ., concurred. Haskell, J., having been of counsel did not sit.