May maintain actions

conversion

and trespass.

ment of such former administrator's final account. Murphy v. Menard, 11 Texas, 673.

Discharge of administrator, effect of.-After an administrator has been discharged, the jurisdiction of the county court as to him is terminated, and he cannot be cited to come into court and restate his account. Francis v. Northcote, 6 Texas, 185.

SEC. 1583.

(196.) Executors and administrators may for waste, maintain actions against any person who has wasted, destroyed, taken or carried away, or converted to his own use the goods of their testator or intestate, in his lifetime. They may also maintain actions for trespass committed on the real estate of the decedent in his lifetime.

Executor

and admin

be sued for

waste or trespass of decedent.

Statutes of 1851, p. 473, § 196.

A complaint in replevin by an executor should show the death of the testator, his leaving a will, the appointment therein of the plaintiff as executor, the probate of the will, the issuance of letters testamentary thereon to the plaintiffs, and their qualification and entry upon the discharge of their duties as executors. Halleck v. Mixer, 16 Cal. 575.

The executors had the right to institute the action under the general authority conferred upon them by the statute. No special authorization from the probate court is requisite in such cases. Ibid.

In actions upon joint and several contracts or obligations, an administrator cannot be joined with the survivor, because the one is joined de bonis testatoris and the other de bonis propriis. May v. Hanson, 6 Cal. 642.

The power of the probate judge to remove in his discretion an administrator for any of the causes named in the statute, will not be interfered with by the appellate court, unless it should be clearly shown that there has been a gross abuse of discretion. Deck's Estate v. Gherke, 6 Cal. 666.

See Jahns v. Nolting, 29 Cal. 507, cited under last section.

Under our statute, an executor may maintain an action for trespass committed upon the real estate of his testator in his lifetime. Haight v. Green, 19 Cal. 113.

SEC. 1584. (197.) Any person or his personal repreistrator may sentatives may maintain an action against the executor or administrator of any testator or intestate who in his lifetime has wasted, destroyed, taken or carried away, or converted to his own use, the goods or chattels of any such person, or committed any trespass on the real estate of such person. Statutes of 1851, p. 473, § 197.

See cases cited under section 1582, ante.

See Hill on Trustees, p. 173.

Survival of cause of action.--A cause of action for the wrongful taking and conversion of personal property, survives against the personal representatives of the wrong-doer after his decease. Coleman v. Woodworth, 28 Cal. 567.

When liable for rental value of land.—If an administrator occupies and uses the real estate of his intestate, he becomes the tenant of the estate and must not only account to the estate for the rental value of the land, but must, if he makes a profit, account to the estate for that also. If he sustains a loss the loss is his, he must at all events pay the rental value of the land. Walls v. Walker, 37 Cal. 424.

An administrator cannot be charged with the rental value of land of the estate, after it has been sold by the sheriff under a foreclosure sale. From that time the purchaser at the sale is entitled to the value of use and occupation.

Liability of executors and administrators.-An executor is liable for the acts of his coëxecutor which were by agreement of the two done by the latter in the joint names of both, and on their joint account. Fonte v. Horton, 7 Ga. 350.

An executor is liable for a misapplication of the trust funds made by his coëxecutor, if by the exercise of reasonable diligence he could have prevented it. lbid.

He is bound to take notice of an account rendered in probate court by his coëxecutor, and is chargeable with a knowledge of the misapplication of the trust funds therein disclosed. Ibid.

Where an administrator is sued in equity by the people to compel him to Pay over to the county treasurer money collected by his intestate as tax collector: Held, that he occupied the position of one who takes possession, without authority, of property belonging to another, and that he may be treated as a trustee de son tort. People v. Houghtaling, 7 Cal. 348.

Though the defendant in such an action be described in the caption of the complaint as administrator, yet the facts show that is not sought to charge him as administrator, and no relief is sought against the estate: Held, that the objection that he is sued in his representative capacity is untenable. Ibid. When liable for interest.-Where an administrator uses the funds of the estate in his private business, or retains them in his hands for an unreasonable length of time, to the prejudice of the heirs and creditors, he will be charged interest on the same in his settlement. Wails v. Walker, 37 Cal. 424.

If the heirs or creditors seek to charge the administrator with interest on funds in his hands, they must show affirmatively that he kept the funds an unreasonable length of time or used the same in his private business, or derived profit therefrom. Ibid.

It is found that the administrator had not kept the funds of the estate separate from his own money, but had used them for his own purpose. He is therefore properly chargeable with interest. Estate of Gasq, October Term, 1871; Pac. Law Rep., vol. III, p. 30; see, also, Utica Ins. Co. v. Lynch, 11 Paige, 525.

Loss of assets.-The principle that where an administrator who has the actual control and possession of assets belonging to the estate, hands over such assets to a co-administrator, the former shall be answerable for their subsequent loss, applies where there are creditors sustaining loss by any waste of the assets. But such a rule cannot prevail if there has been any good reason why such assets should have left the custody of one representative of the estate and have passed into that of the other. Neither can an administrator contend that an administratrix who has confided in his fidelity, shall be answerable for the funds intrusted by her to him, under the circum

Surviving partner to settle up business.

Interest

appraised.

Account to be

stances developed in this case, and which funds of right appear to belong solely to her. Est. of Daly, 1 Tucker's Sur. Rep. 95.

An administrator was held to the appraised value of assets in his inventory, where he had undertaken to carry on a business and thereby lost assets of the estate. Where he trafficked with his own firm, and paid himself without proof, the payment was disallowed. Where he deposited trust moneys in his bank account, or loaned them without interest to his firm, he was charged with legal interest. Est. of Prescott, 1 Tucker's Sur. Rep. 430; see, also, Est. of Hood, lbid, p. 396.

SEC. 1585. (2198.) When a partnership exists between the decedent, at the time of his death, and any other person, the surviving partner has the right to continue in possession of the partnership, and to settle its business, but the intherein to be terest of the decedent in the partnership must be included in the inventory, and be appraised and appropriated as other rendered. property. The surviving partner must settle the affairs of the partnership without delay, and account with the executor or administrator, and pay over such balances as may from time to time be payable to him, in right of the decedent. Upon the application of the executor or administrator, the probate judge may, whenever it appears necessary, order the surviving partner to render an account, and in case of neglect or refusal may, after notice, compel it by attachment; and the executor or administrator may maintain against him any action which the decedent could have maintained.

Statutes of 1851, p. 473, 198.

Compare section 1524, ante.

Partnership owning real property.-Liabilities of surviving partner. The surviving member of a partnership owning real property is something more than a mere tenant in common with the representative of the estate of the deceased partner. He is the trustee for the purpose of winding up the affairs of the firm, and is accountable for the use and occupation of the landed estate of the partnership. Smith v. Walker, 38 Cal. 385.

The surviving partner is bound to account and pay over to the administrator of the deceased Partner all the profits of the realty as that of the personalty that rightfully belongs to the estate, notwithstanding he may have purchased the interest of the heirs in the estate, or the community interest of the surviving wife of the deceased partner, and it is for the probate court to distribute the estate to the parties entitled. Ibid.

When the partnership is dissolved by the death of one of its members, the surviving partner is to wind up the affairs of the partnership, and pay its debts out of the assets, if sufficient, and divide the residue, if any, among those entitled to it. Gleason v. While, 34 Cal. 258.

When claim of administrator arises as against surviving partner. The relation of debtor and creditor between the surviving partner and the representative of the deceased partner does not arise until the affairs of the partnership are wound up and the balance is struck; and this balance is to be struck after all the partnership affairs are settled, and not while they are being wound up. lbid.

If the partnership is indebted to the surviving partner, this debt is a contingent claim against the estate of the deceased partner, which does not become absolute until the partnership affairs are settled, and it is ascertained that there are no partnership assets to pay the same. Ibid.

Claim of surviving partner, when to be presented. The claim of a surviving partner for advances to the partnership should not be presented to the administrator of the deceased partner for allowance until the partnership affairs are wound up; and it may be thus presented at any time within ten months after the partnership affairs are settled, and if rejected, suit may be brought on it at any time within three months after its rejection. Ibid.

As a general rule it is the duty of each partner, during the partnership, to devote himself to the interests of the concern without compensation. But when the partnership is dissolved by death, and the survivor expends his time and labor in the care and management of the partnership property, by which its value is enhanced, he should receive compensation for the same, to be deducted out of the profits realized from the enhanced value of the property. A surviving partner, however, is not entitled to pay for services rendered, for merely winding up the affairs of the concern. Griggs v. Clark, 23 Cal. 427.

See Thomson v. Thomson, noted under section 1461, ante.

See sections 1365 and 1445, ante.

The balance due from a deceased partner of a firm to a surviving copartner, on account of the partnership transactions, is an unliquidated demand of the fourth class of debts due from the estate of the decedent, according to the order prescribed by the revised statutes, which it is competent for the surrogate to liquidate as an equitable demand and order to be paid. Babcock v. Lillis, 4 Brad. 218.

Indebtedness of Partnership.—Right of possession of surviving partner. When a partnership was formed in Missouri, and comprehended as well transactions in that State as in this, a full settlement should involve and include as well transactions there as here. The administrator of the deceased partner, therefore, is not entitled to a decree, irrespective of the firm debts there, and the survivors would seem to be entitled to retain in their own hands money or assets sufficient to pay this indebtedness, whether due in Missouri or on contracts made there or here. Griggs, Admr's, v. Clark, 23 Cal. 427.

A surviving partner has, under the statute of May, 1850, regulating the settlement of the estates of deceased persons, section 198, the exclusive right of possession, and the absolute power of disposition of the assets of the partnership. Allen v. Hill, 16 Cal, 113.

Stock in hands of surviving partner.-A surviving partner has a right to vote, at an election for officers of a corporation formed under the general incorporation act of this State of 1853, the stock in his hands as assets of the partnership-the business of the firm being unsettled. Ibid.

The fact that a portion of the stock voted by such surviving partner stood

upon the books of the corporation at the time of the election in the name of the deceased partner alone, does not affect the right to vote if in fact the stock belonged to the partnership. Ibid.

A surviving partner being entitled to the possession and control of the partnership effects, can proceed directly in the district court to obtain the control, and to have a partition of the real estate belonging to the partnership, but standing in the name of his deceased partner. Gray v. Palmer et al., 9 Cal. 616.

Surviving partner, though brother, cannot be administrator.-The proviso in the fifty-second section of the act to regulate the settlement of the estates of deceased persons, as amended by the act of April 23d, 1855, extends to all the classes of persons designated in the section, and is not limited to persons embraced within the tenth class; and a surviving partner, though a brother, where a partnership existed at the time of the death of the intestate, cannot be administrator of the estate. Cornell v. Gallagher, 16 Cal. 367.

Waste by surviving partner.—If a surviving copartner wastes the funds, the court would, upon a proper application, protect the estate of the deceased partner by obliging the survivor to give security, or will appoint a receiver. And the acts and assumptions of the surviving partner as to the affairs of the copartnership will bind the other partner's estate, and his own representatives, so as to make his private estate in their hands liable on failure of copartnership funds. 1 De Saussure, 427.

And the law has fixed no limitations of time as to a surviving partner reviving copartnership debt by his acknowledgments which may bind the estate of deceased copartners. Ibid.

And a copartner giving his bond for a copartnership debt affects only his own private property; but the assignee, after exhausting his estate, may come in pari passu, with the other creditors on the copartnership effects for the balance of his debt; taking the bond, though a higher security than the partnership debt on open account, does not extinguish the latter under the circumstances. Ibid.

When executor may be sued for partnership debt.-The executor or administrator of a deceassd member of a partnership cannot be sued for a firm debt, unless insolvency of the surviving partners, or some other ground of special relief, be shown. Copcutt v. Merchant, 4 Brad. 18.

The obligation of a partnership debt is joint; the remedy at law continues against the surviving partner; and the creditor is bound to resort to his legal remedy against him, or show a necessity for coming into a court of equity for relief against the estate of the deceased partner. Ibid.

In equity, partnership creditors will be decreed satisfaction of their debts as against the legal representatives of a deceased partner, where the firm and the surviving partner are insolvent. North River Bank v. Stewart, 4 Brad. 254.

This remedy does not, however, extend to cases where the estate of the deceased partner is insufficient to pay his separate debts. Ibid.

By the English rule, where there is no joint estate and no surviving partner, the joint creditors are allowed to share ratably with the separate creditors in the separate assets, this exception, however, to the general doctrine has not been recognized, and does not prevail in this State. Ibid.

If, after the payment of the separate creditors, any surplus remain, it may be applied to the payment of partnership debts; but is such case, those who