Green's Administrator v. Virden

Scott, Judge, delivered the opinion of the court. The defendant (Yirden) and James Green, deceased, were partners. Green died, and the defendant (Yirden), his partner, gave the bond required by the statute, and retained the control of the partnership effects. Afterwards, the county court of St. Charles county removed Yirden and revoked the powers granted to him, because he became a non-resident, and appointed Parks, administrator de bonis non, (as he is termed in the proceedings,) of the partnership effects, who brings this suit on the bond given by Yirden as surviving partner, alleging breaches of its several conditions. The record raises the question, whether a surviving partner, who gives the bond required by the statute for the due management, of the partnership effects, can, for non-residence, or any other cause, be removed by the probate court in the same manner as an ordinary administrator. [511] The provision requiring the surviving partner to give bond for the use of due diligence in the management of the partnership effects, is a new one, in derogation of the rights of the surviving partner, as they existed at common law. All interference with his rights must have a support in the statute law, and we are restrained from going farther in diminishing his control over his goods than the words of the law fairly warrant. It is to be borne in mind that the survivor is the owner of one half of the effects. Where the surviving partner fails to give bond, and the administrator of the deceased partner takes charge of the partnership effects, he can not prosecute suits in his own name as administrator, but he is compelled to use the name of the surviving partner. When the survivor elects to take the control and gives the bond required by law, the powers to be exercised over him are statutory. The bond is a pledge for the security of that portion of the effects belonging to his deceased partner’s estate committed to his charge. The 52d section of the 1st article of the administration law enacts that “ the county court shall have the same authority to cite such survivor to account, and to adjudicate upon such account, as in the case of an ordinary administrator, and the parties interested shall have the like remedies, by means of such bond, for any misconduct or neglect of such survivor as may be had against administrators.” There is nothing here like a power of removal. On the contrary, from the language of the statute, it would seem that the remedy against the survivor is to be had by means of the bond. It would be against all principle to assume by implication a power of taking away the right of control which a man has over his own property. There is no hardship in this conclusion. The sureties of the survivor must be such as the law requires for administrators. They will be residents of the county, and if the survivor absents himself, his bond and sureties will be accessible to all who may suffer by reason of his neglect. The judgment is reversed ; the other judges concurring.