Lance v. Calhoun

Truly, J., delivered the opinion of the court. Section 1931, Code 1892, has no application to a surviving partner who is administering the estate of his deceased partner in the partnership assets. Except as specially changed by the statute, the surviving partner still possesses all the rights and powers which he held under the common law. McCaughan v. Brown, 76 Miss., 496 (25 South. Rep., 155). A brief examination of the statutory provisions relating to the administration of estates generally, as distinguished from the administration of a partnership by a surviving partner, will disclose the reason for the difference in the procedures to be followed. Probation of claims within a short time is required, so that the private, separate estate of the decedent may be promptly administered and distribution of the assets made. Administrators are forbidden to pay any claim against the estate unless the same shall have been probated, allowed, and registered. This provision is necessary because the party who contracted the debt, and who probably alone knew all the particulars of his just indebtedness, being dead, prevents the possibility of the collection of fraudulent claims by requiring that every claim shall be proven in the prescribed mode by competent proof, and providing a simple method of contesting any claim of doubtful validity. But no' such precaution is demanded in the case of a surviving partner, for the reason that he is himself jointly interested in the assets coming into his possession as survivor, and is jointly liable with the estate of his deceased, partner for all debts due by the firm, and of his personal knowledge is advised whether a claim presented is simu [379] lated or is justly owing by tbe firm. Tbe administration by a surviving partner of the partnership assets, and the payment of the partnership debts, is entirely distinct and separate from the administration of the private, personal estate of the decedent. In the case at bar the chancellor found that all of the claims paid by the appellees were just and legal demands due by the partnership, and as such were properly payable out of the assets of the firm, even though not probated. We find nothing in the record to cause us to doubt the correctness of his conclusion. If, as contended by appellant, Calhoun, one of the appellees, is in truth indebted to the estate of his deceased partner in any sum whatever, the administratrix is not debarred from employing her legal remedy and enforcing collection thereof. But the fact, if fact it be, that such an indebtedness Was due the estate of the deceased partner, did not affect or diminish the rights of the survivor to administer the partnership assets until the same were taken out of his hands, by order of court, under the plain provisions of the law. Affirmed.