Appeal of Williams

Opinion, Mr. Justice Paxson : The first five assignments of error are not in accordance with the rules of court, and will not be considered. The sixth assignment raises the only important question in the case. It is as follows: “ The court erred in not striking from the credit side of the account the item of 15,612.50, being credit claimed by the accountants in the following words and figures: ‘Accountants claim credit for $5,612.50, amount received by George Gallagher, surviving partner of T. & G. [477] Gallagher, from the sale of real estate sold under the will, and by him applied to the payment of partnership debts, $5,012.50.’ ” After the death of Thomas F. Gallagher, the real estate which was supposed to belong to the firm of T. & G. Gallagher, was sold by George Gallagher, as surviving partner, and the proceeds applied to the payment of partnership debts. The executor of Thomas joined in the deeds, but did not receive any of the money. The individual debts of Thomas F. Gallagher have all been paid in full. The creditors unpaid (including appellants) are creditors of the firm, and they allege that said real estate was not partnership property, hut was held by the firm as tenants in common, and that the one half of the proceeds (the share of Thomas) should have been distributed pro rata among the creditors. The distribution appears to have been made by the surviving partner under the belief that the firm was solvent, whereas it now appears that both the firm and the individual members thereof were insolvent. It thus happened that some creditors have been paid in full while others have been paid in part only. There is nothing to raise an inference that any fraud was intended. That the fund in question, whatever may be its character, was properly applicable to the payment of the creditors of the firm, is entirely clear.' This would be so since the act of 1848, even if the surviving partner were solvent: Brewster’s Administratrix v. Sterrett, 32 Pa. 115; Moores’ Appeal, 34 Pa. 411. But if the fund in question is the proceeds of the individual real estate of Thomas F. Gallagher, then the creditors had a statutory lien, and in the absence of record liens, it should have been applied to their payment pro rata. It will thus be seen that the question whether the real estate was partnership or individual property was the one vital fact in the case. Yet we find nothing in this record by which such fact can be determined with judicial certainty. It is not found by either the auditor or the court below. The former does not refer to it, and the latter does not find the fact. Nor is there a particle of evidence upon the subject so far as the same has come up to us. The only matter that throws any light upon it is the will of Thomas F. Gallagher, which refers to the real estate as firm property, and directs his executors, in connection with the surviving partner, to sell the [478] same. We have then both the partners treating and dealing with the real estate as firm property, and in the absence of any evidence or finding to the contrary, we must assume the fact to be so, and that the distribution was properly made. We cannot convict the court below of error upon mere conjecture. Those who allege error must show it. The decree is affirmed, and the appeal dismissed at the costs of the appellants.