Burnside v. Savier

By the Court, McArthur, <7. : The question presented by this record for determination [156] is as to the extent of the power and jurisdiction of the county court, sitting in probate under section 1071 of the Code. After defining the powers and duties of the “administrator of a partnership ” in a very general way, the section concludes as follows: “In the exercise of his powers and the performance of his duties, the administrator of the partnership is subject to the same limitations and liabilities, and control and jurisdiction of the court, as a general administrator.” Under our law the general administrator of an estate has no power or authority, nor can any be conferred upon him to sell any more of the real estate of his intestate than is necessary to pay debts. Nor can he by any order of the court to which he owes his appointment, and by whose orders he is generally directed, partition the remaining realty among those entitled thereto. Such partition can only be made pursuant to a decree of a court of equity. (Code, sec. 419.) In view of the limitations placed upon the administrator of a partnership, and the want of jurisdiction in the county court, sitting in probate, to partition the remaining realty, we are inclined to the opinion that the power of such an administrator extends only to the collection of the debts due the partnership and the payment of demands against it, with the incidental power invested by order of the court, after proper steps taken, of selling the personal property, and so much only of the real estate as may be necessary to pay debts of the partnership, leaving the questions that may arise among the partners and their representatives on settlement of the affairs of the partnership between themselves, and the partition of the partnership realty or its sale, and the distribution of the proceeds, to the determination of a court of equity. Decree affirmed.