Painter v. Estate Painter

Foote, C. — The plaintiff, at the time of the death of the decedent, Jerome B. Painter, against whose estate and the executors of whose will this action was brought, was his partner, doing business under the firm name of Painter & Go. J. B. Painter died on the sixth day of February, 1883, leaving a will, which was admitted to probate on the thirteenth of April of the same year. The will was of date March 11, 1864, a codicil being added thereto ten years after.

The plaintiff, by the will, was named one of its executors. Pie was also made a legatee thereunder, and appropriated to his own use, it seems, without waiting for the probation of the will, the property claimed by him as a legacy.

Afterwards, the will was admitted to probate, and he and R. R. Dallam and Caroline A. Painter qualified as executors and executrix under it. An inventory of the estate was made, sworn to, and filed. The decedent’s estate, as appraised, was of the value of $82,713.94, consisting of real estate to the amount of seventy-five thousand dollars and personal property valued at $4,615.94. The interest of the estate of the deceased in the said partnership property and assets of the firm of Painter & Co. are in the inventory valued separately at $4,152.94; this was made under section 1445, Code of Civil Procedure. Under section 1585, Code of Civil Procedure, the interest of a decedent in a partnership must be included in the inventory of his estate, and be appraised as other property. The surviving partner must settle the affairs of the partnershijD 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 deceased. But that duty plaintiff, as surviving partner, did not perform. He took possession of all the [397]assets of Ms decedent in the partnership, claiming them as a special legacy under the will, and propounded a claim for many thousand dollars against his decedent’s estate, which claim consisted of moneys that his decedent, as partner, had drawn of the partnership funds in excess of that which the plaintiff had drawn. It appears, however, that the partnership was solvent, and the decedent’s share of its assets at his death sufficient to pay this debt to the brothers, executor and partner, and still leave due the estate the sum of $4,615.94, as per the inventory.

But the contention of the plaintiff’ was, that he had a right to all the decedent’s interest in the partnership assets, absolutely, and that the amount of the decedent’s overdrafts on the partnership funds must be paid him by the general estate, even although, as shown, the decedent’s interest in those assets exceeded his liabilities thereto.