Gomez v. Higgins

HARALSON, J. We Can understand very well, if tlie only surviving partner in a copartnership dies, it is 'Competent and may be necessary for a court of equity to take charge of the assets of the firm and have its affairs wound up by the appointment of a receiver. High on Receivers, § 530; 20 Am. & Eng. Ency. Law, 292. Whether that course 'should have been pursued in this case, must depend upon the proper construction of the instrument termed the agreement of partnership between F. Gomez and his son, Alexander Gomez, of date 25th August, 1898, — exhibit A to the bill. There can be no question but tliát exhibit A was a partnership agreement between said parties, but this did not prevent, it being testamentary in character also, in some of its provisions, and that it is testamentary, on the part of F. Gomez, in one of its provisions, is the contention of the defendants. It appears by the terms of said instrument, that F. Gomez contributed all the capital put into the firm, and that Alexander contributed nothing, and was to contribute nothing but. his time and services, and F. Gomez, in addition to the capital he contributed, was also to contribute his time and services. It was stipulated, that the senior was to be the general manager of the business and should have full control of all credits, income and profits, and the investment of the same during hisi lifetime. Under this latter provision, and under his general authority as a partner, it appears he retained and could exercise very large, discretionary powers in the management and disposition of the firm’s affairs and assets. It was provided that the partnership thus formed, should continue “until the death of F. Gomez, except in case of the death of Alexander Gomez.” If Alexander had died first, his entire interest in the business would have ceased, and nothing would have been left to him but his share in the profits, if any, up to that time. His interest in and to one-half of the business [500] profits, if any, as well as to bis joint ownership in the capital put in by bis father, both as to its amount and duration, is made certain by the terms of the agreement itself, as well as is the consideration on which his ownership therein, as limited, was given him. The language of the- agreement as to this matter is: “The said F. Gomez in consideration of the love and affection he has for his son, Alexander, and rewarding, him for his many years of invaluable assistance in helping to maintain and increase the business, of bringing it up to its present standard, and the further consideration of the sum of one dollar, does hereby bargain, sell and convey an undivided half interest in and to said business and stock of goods, mortgages and profits and income from rents, to the said Alexander during Ms life (Italics ours:) So, if he had died first, it is too plain to admit of dispute, all the property of the firm became, at once, the property of the father, leaving said Alexander’s estate interested only in the profits earned to that time, if any. Following this last mentioned provision, is another providing for the contingency of the death of F. Gomez, leaving his said son surviving him. The provision is.: “In the event of the death of F. Gomez, the entire business with all assets, profits, book accounts and money on hand shall become the property of Alexander Gomez during his life, and at his death, the said business, together with all assets, profits, book accounts, stock and money on hand shall 'be divided into three equal parts, as follows: — one-third (1-3) to my daughter Florida Gomez, one-third (1-3) to my daughter Rom-anda Higgins, and one-third (1-3) to the heirs of said Alexander Gomez.” This provision is plain and unambiguous, as to the direction the property mentioned should take, on the death of said F. Gomez, his son surviving him,— an event which -occurred. The said Alexander, in that event, was entitled to have, keep and use, during his life, the entire property put into the firm by his father, as well as the profits, if any, at that time on hand, and when Alexander died whatever remained, in its then present state, -should go to, and be divided between, his [501] two daughters, and the children of said Alexander, — ■■ the children of Alexander taking a third, and each of the others named, a third. F. Gomez never gave to his son more 'than an undivided half interest in the capital of the partnership, retaining to himself the ownership of the other half interest, affected as it might be, by the partnership into which it was placed, and the conduct of its business; and what he thus gave his son, was given to him, as already stated, for life only. When he came to provide in the articles of partnership, for the contingency of his own death, in the clause last quoted, Ms son surviving Mm, his intention appears to have been, to direct to whom his own undivided half interest should belong, as well as to direct how the remainder he had in what he had given for life to his son should go, and. to whom the whole estate should belong. So, he directed that the whole property, — his own undivided half interest therein, and his remainder in the undivided half interest he committeed to his son, — “shall become the property of Alexander Gomez, during Ms lifetime”; and afterwards, to 'be didder! between the parties named. These residuaries had no right or title to or enjoyment of the property, or any of it, until Alexander died. Until then, it belonged to him; and if Alexander had died first, it was within the power of said F. Gomez to have given a different disposition of the property, from that made in the clause last referred to. In it he evidently intended that the interest and estates to his said children, should take effect only after his death. He was under no contract obligation with Alexander, nor with any of his own children not to alter the terms of that gift, in the event Alexander died before he did. All that he ever contracted for, with said Alexander, was that he should have the half interest in the property' mentioned during his, Alexander’s, life, and this he fully secured to him, giving him in addition, as a, gratuity, in case 'said Alexander survived him, his own undivided half interest for life. If Alexander had died prior to his father, the children of F. Gomez, had, as already stated, no title to any of the copartnership property, except in the profits earned, if 'any, for which they [502] coulcl have made the latter account to them. If the instrument be construed as a deed, then it fixed their interests and was not revocable, or subject to change by the said F. Gomez. It has the ear marks of a testamentary disposition of the property, such as constrain us to hold, that it did not pass a present estate, but was a testamentary disposition as to the property in question.—Jordan v. Jordan, 65 Ala. 306; Trawick v. Davis, 85 Ala. 342; Moore v. Campbell, 102 Ala. 452; Abney v. Moore, 106 Ala. 134; Whitten v. McFall, 122 Ala. 623. So far as it affects the merits of the question we consider, it is of no consequence whether these bequests were vested at the death of F. Gomez or only after the death of Alexander. The administrator of the elder Gomez, on his appointment, had the right to the possession and administration of the property. The contract, exhibit B, entered into by Alexander with his sisters for their own and the benefit of the children and grandchildren of F. Gomez, had no effect to change in any wise the disposition the said testator had made of his property. Its only effect was the renunciation by Alexander of his life estate in the property, thereby accelerating the remainders to the children and grandchildren of the testator. The administrator of Alexander, would be entitled to receive, the. share of his intestate, in the profits of the copartnership, if any appear, but it is not averred that there were any. The motion for a receiver was properly denied. Affirmed.