Beatty, C. J., Henshaw, J., and Temple, J., concurring. We concur in the judgment. We do not think we can say over the implied finding of the trial court that the execution of the partnership articles was procured by fraud, or by the use of undue influence. The question is argued on the assumption that the Newmans were contracting with the expectation that they would be the survivors. We do not think we can assume that. Such a consideration was proper to be urged upon the trial court under the charge of fraud, and evidence could have been addressed to that point. It does not appear that any such question was tried. It does appear that Levinson was then ill, but we do not find that the illness was deemed mortal. He lived more than one year thereafter, and during a portion of that time was able to attend to business.
But the advantages of the agreement are not all on one side. In case of a dissolution by death it would have been the privilege of the surviving partners, in case [651]there was no provision made for such an event, to have stopped the business and to have gone into liquidation. In such case the goods would have been sold at a sacrifice, and the estate would have realized nothing for the goodwill.
As to the construction and effect of the twelfth article of the partnership agreement between the defendants and their deceased partner, our views do not coincide with those expressed in the preceding opinion. The meaning of that article is, of course, the main question in the case, and for two years after the death of Levinson it was the only question—the attack upon the validity of the agreement based upon the alleged mental incapacity of Levinson and the charge of undue influence by his surviving partners, being an evident afterthought. So much stress, however, has been laid upon this matter in the argument, and it forms so large and so essential- a part of the charge of fraud, to the elaboration of which the voluminous brief of appellants is mainly devoted, that it cannot be ignored. The fact that the validity of the partnership agreement is affirmed by the implied finding of the superior court, and that there is substantial evidence to support such finding, is sufficient, as shown in the preceding opinion, to put an end to the question, so far as it is material to the decision of this appeal, but with respect to the matters so vehemently and intemperately argued upon the part of appellant, and especially with reference to the torrent of vituperation poured out upon Mr. Justice Harrison, it is important to note that never upon any occasion during the time that he was acting as attorney for executor Raveley was there the slightest hint or suggestion to the effect that the partnership articles were in any respect invalid, or that Levinson at the time he signed them was mentally incapacitated or subjected to the slightest degree of undue influence. On the contrary, the whole dispute from the beginning, and for two years after the death of Levinson, was as to the construction of the agreement, and, in particular, whether, according to its terms, the estate [652]of Levinson was entitled to separate and additional compensation for his interest in the goodwill of the business of the firm. The mother and sisters of Levinson—all adults—and Mr. Philbrook, their attorney, assumed as a fact unquestioned that the contract was entirely yalid, and that the rights of all parties were dependent upon its proper construction. Under these circumstances it would have been strange indeed if the attorneys for the executor had not taken the same view. Naturally and inevitably they confined their attention to the meaning of the contract, and to the steps necessary to be taken in carrying it out according to the intention of the parties. They (the firm of Jarboe & Harrison) had been employed by the executor within a few days after the death of Levinson, and Mr. Philbrook shortly afterward was employed by the mother and sisters of the decedent to look especially after their interests. From the very first there, was an open difference . of. opinion between these attorneys as to the meaning of the partnership agreement with respect to the right of Levinson’s estate to be paid an additional compensation for his interest in the goodwill of the business, over and above the appraised value of his interest in the stock of goods, fixtures, accounts, and other tangible assets of the firm. Jarboe & Harrison took the position, which they always maintained openly and unequivocally, that according to the proper construction of the agreement the surviving partners took the whole interest of the deceased partner, including the right to continue the business under the name of Newman & Levinson, upon payment of the appraised value of his share of the assets, to be ascertained by an inventory and appraisement according to the annual custom of the house, and that no separate allowance for goodwill was contemplated or provided for. Mr. Philbrook took the opposite view, which he likewise consistently maintained. There was no other difference between the parties or their legal advisers, and when the inventory and appraisement were made their fairness and cor[653]rectness, so far as they went, were not disputed, the only objection on the part of Mr. Philbrook' and his clients being that it made no allowance for the value of the goodwill. No charge of fraud or undervaluation of assets, or overstatement of liabilities in the appraisement, was then or ever during Judge Harrison’s connection with the case made or suggested. The dispute was wholly upon a question of law, i. e., the construction of a contract, and as to this there was, as above stated, no equivocation or concealment whatever.
Mr. Philbrook, however, seems to think that Jarboe and Harrison were guilty of a species of disloyalty tc> Ms clients, because, notwithstanding their opinion to the contrary, they did not sustain him in his position, and advise their client accordingly. But this contention i's utterly unreasonable. They were attorneys for the executor, who was trustee not only of the legatees, but also of the creditors of his testator, and it was their imperative duty to advise him to proceed according to the true construction of the agreement as they interpreted it, and especially to see that he wasted no portion of the estate in fruitless litigation. In view of the difference of opinion between them and the attorney for the legatees, it was natural that they should take time to consider before deciding a question so delicate and so important, and equally natural that they should wish to submit the decision of the matter to the probate court. But when that court, in the proceedings instituted by the Newmans to compel the executor to transfer to them the interest of the deceased partner, declined to give a construction to the agreement upon the ground that it had no jurisdiction to decide upon the matter, the responsibility was thrown upon the attorneys for the executor to decide whether he should accept or reject the tender which the Newmans had made of the appraised value of Levinson's interest. Being obliged to take the responsibility of deciding, they naturally decided according to their own construction of the contract, aifd not according to Mr. Philbrook’s. Differing, [654]as we do, from the views which they entertained, we should never have thought of imputing a bad motive for their decision, if for no other, yet for the simple reason that, if wrong, it could harm no one but themselves and their client. A large part of Mr. Philbrook’s tirade is based upon the assumption that Jarboe & Harrison did not really entertain the opinion which they expressed, and that they only advised the executor to the course that he took because they were acting in collusion with, and in the interest of, the Newmans. The absurdity of this position is manifest from the fact that any settlement between the executor and the Newmans, not made in accordance with the true construction of the contract, could only involve the parties to such settlement in loss and difficulty, and could not possibly foreclose or prejudice the rights of the residuary legatees. .
By accepting the money and notes tendered by the Newmans in full payment for the interest of his testator in the firm, the executor placed himself in the position of unequivocally refusing to proceed against the surviving partners on account of the value of the goodwill, and thereby gave to the residuary legatees the right to ask, as they ultimately did, for his discharge, upon the ground that he was neglecting the duties of his trust. As to the executor, this was the sole effect of erroneous advice on this point. As to the Newmans, the effect of a settlement unauthorized by the probate court, and unwarranted by the terms of the partnership agreement, would simply be to expose them to an action for an accounting—this very action—in which the most rigorous and burdensome rules for computing the interest of Levinson in the assets of the firm and profits of the business would be enforceable against them at the option of the administrator with the will annexed. To suppose, as the argument does, that the attorneys for the executor were deliberately giving him advice which; they knew to be bad, in order to serve the interest of' the Newmans at the expense of the legatees, wTien the, [655]only effect of the course advised would be to expose the executor to censure and punishment, and the Newmans to certain loss, is rather too heavy a draft on human credulity.
But it is not alone the acceptance of the tender made by the surviving partners, and the advice upon which the executor acted, that furnish grounds for Mr. Phil-brook’s suspicions. It is the secrecy of the transaction, and the fact that the receipts or acknowledgments given by the executor were in the handwriting of, and were witnessed by, a gentleman who at the date of the settlement had been nominated by a leading political party of the state for a seat on this bench, that excites his deepest indignation. He can see in these circumstances nothing but a deliberate attempt to defraud his clients and to corrupt this court.
As to the secrecy of the transaction, the simple truth is that Mr. Philbrook and his clients were not called in to witness the payment of the money or the delivery of the receipts, and there was no reason why they should be present. It was not necessary that they should be there to protest in order not to be bound by the settlement. Their rights were not being concluded, or in anywise prejudiced. The fact that the notes and money were in the hands of the executor was nothing to them. The time for presentation of claims of creditors had not elapsed, the time for filing a first annual account had not arrived. No part of the money in the hands of the executor could then or for months thereafter be applied in payment of claims or legacies; in short, neither the executor nor the Newmans could gain the slightest advantage, nor the legatees suffer the slightest loss, by concealment of the fact that the settlement had been made. And accordingly we find that upon the very first occasion calling for a disclosure of the fact and the terms of the settlement, such disclosure was fully and unreservedly made in the most direct and certain terms. The settlement was made in September, and in November following, in response to a [656]demand for an amended inventory of Levinson’s estate, which should include the item of goodwill of the business, the surviving partners served upon Mr. Phil-brook their written answer, which contained, among other things, the following passage:
“And deny that said William J. Newman, or said Benjamin Newman, has not fully accounted to said executor of said estate for any and all moneys, interests, and claims due to said estate from said William J. Newman or said Benjamin Newman, or either of them, and, aver, on the contrary, that they have fully accounted for any and all claims, payments, and sums due said estate in the manner set forth in said memorandum in writing, and in this behalf said William J. Newman and said Benjamin Newman aver that after the appointment of said S. W. Raveley as the executor of the last will and testament of said John Levinson, deceased, said executor requested them— said William J. Newman and Benjamin Newman—-to account to him for the interest of said decedent in said co-partnership, and said William J. Newman and said Benjamin Newman did thereupon account to him and exhibit to him, said executor, all the books and assets of every kind belonging to said copartnership, and it appeared therefrom that the entire interest of said decedent in the assets of said copartnership amounted to. the sum of twenty thousand seven hundred and ninety dollars and eighty cents, and thereupon said William J. Newman and said Benjamin Newman elected and decided, under and in accordance with the provisions of said memorandum in writing, to purchase and pay for the interest of said decedent, in said copartnership, and thereupon executed to said S. W. Raveley, as executor aforesaid, twelve certain promissory notes, bearing date the twenty-sixth day of February, 1890, payable at monthly ■intervals thereafter, each for the sum of seventeen hundred and thirty-two dollars and fifty-seven and one-third cents {saidpromissory notes aggregating the sum of twenty thousand seven hundred and ninety dollars and eighty cents), in full payment and discharge of the interest of said decedent in said [657]copartnership business, as the same had been ascertained and determined by the inventory and appraisement thereof, made in accordance with the provisions of said memorandum in writing.”
Mr. Philbrook knows the meaning of a plain statement in plain English, and, therefore, it is not to be doubted that from and after the nineteenth day of November, 1890, he and his clients knew that executor Raveley had accepted from the surviving partners their notes for twenty thousand seven hundred and ninety dollars and eighty cents, in full payment for his testator’s interest in the copartnership. He knew then and ever afterward that Raveley, acting under the advice of his attorneys, would refuse to prosecute an action against the- Newmans for a further accounting, and that the legatees, if they desired to have such an action instituted, must procure the removal of the executor, and the appointment of an administrator with the will annexed who would be guided by his advice. This is the course which was taken just one year after Mr. Philbrook was advised of the settlement, and, since he allowed a whole year to elapse after receiving the information before taking the only action that the settlement called for, he can hardly complain that the fact was not disclosed two months sooner than it was. As to the fact that Mr. Harrison, after his nomination for justice of the supreme court, continued to advise executor Raveley in a matter in which he had been employed long, before his nomination, and the further fact that he drew up and witnessed the papers which passed upon the settlement, it seems scarcely credible that a normal mind could regard them as evidence of fraud, or as an attempt to corruptly influence the decision of this court. But it is out of these simple circumstances that Mr. Philbrook has constructed his elaborate theory of fraud and corruption.
The truth is there is not only no foundation for the argument upon this point, but the fact which it seeks to establish is totally irrelevant. The motives which [658]may have prompted Raveley’s attorneys in giving their advice, the advice itself and the action taken in consequence of it have not in the slightest degree affected the rights of Levinson’s mother and sisters. If the advice was correct, as held in the preceding opinion, there never was any ground of complaint. If it was incorrect the settlement did not bind the estate, and the Newmans remained accountable for the true value of Levinson’s interest at the time of his death, or, at the option of his representatives, for the profits of the business which they continued to carry on.
If these views are correct, and we have no doubt that they are, the whole question of fraud and corruption so gratuitously imported into the case may be dismissed from further consideration, and attention confined to the questions upon which the decision of the appeal -necessarily depends.
The agreement between the Newmans and Levinson, "which by the preceding opinion is held to be a contract ■of sale, properly bears the construction put upon it. It was within the terms of the agreement and the contemplation of the parties that in some way a purchase by "4he survivors should be made. If the contract were in 'other respects free from objection, the case would be the not unusual one where the partners provide for the purchase by the survivors of the interest of a deceased member of the firm. Upon the exercise by the survivors of their right the sale would be complete, and the surviving partners would become debtors to the estate of the deceased partner, with the duty of accounting with his representative for the value of the deceased partner’s interest.
Oases are not rare where contracts of this nature have been entered into and enforced, but, when upheld, it is because they are certain and specific in their terms, and unobjectionable upon any equitable consideration. The plan adopted by these partners for arriving at the value •of their annual profits by deducting from their assets the amount of their liabilities was feasible and satisfac[659]tory while all the partners were living, but upon the death of Levinson not the profits merely, but the whole of his interest was in some manner to be determined and withdrawn from the assets of the firm. While all of the partners were alive it did not matter how the assets were valued or the liabilities estimated, for what they did not take out as profits they retained in the assets of the firm. But, when one died, it became highly important that his share, then to be wholly withdrawn, should be fairly and fully valued. The apportionment of profits involved no transfer of title to the remaining capital; but such a transfer was necessarily involved in the transaction contemplated upon the death of a partner. Frequently, says Bindley on Partnership, section 429, in order to prevent the ruin consequent on the sale when a partnership happens to be dissolved by the death of a partner, it is provided that the share of the deceased may be taken by the survivors at the value shown by the last settlement agreed to by him, with the addition of any subsequent profit. But here a new valuation was to be made, and either no method is provided in the contract for arriving at that valuation, or, if a method be found, it can only be the method actually adopted—the valuation being made by the surviving partners themselves. But, in the first instance, if no mode is prescribed, there is the absence of an essential element of a contract of sale which equity cannot supply—the price or the manner of determining the price. If the second, and the mode adopted be the one contemplated by the contract, then if the contract be valid it must result in holding that the surviving partners, trustees of the deceased partner’s share, may not only purchase that share, but may fix the value which they will pay for it.
But, if we understand respondents, they do not contend, nor could they successfully, for the latter proposition, but they claim that by their agreement with the executor such value was legally ascertained, and herein it is claimed that the executor in effecting that settle[660]ment was merely carrying into effect the contract of his testator, as expressed in the articles. But something more was necessary. The testator’s contract did not determine the amount of the consideration to be rendered by the survivor for his interest, and the exercise of a-further act of discretion, judgment, and assent was necessar}r to ascertain the amount. (Morrison v. Rossignol,. 5 Cal. 64; Breckinridge v. Crocker, 78 Cal. 529; Vickers v. Vickers, L. R. 4 Eq. Cas. 529.) It is said that these were-cases where specific performance was sought, while in this instance the contract has been executed. This is true, but we are now dealing with the question of power in the executor, and these cases illustrate the proposition that in making the adjustment with defendants the executor necessarily supplied the missing terms of his testator’s contract by the exercise of his own will and discretion.
Had the executor that authority? Defendants claim it for him by virtue of his general powers, and independently of the articles. At the common law such power was unquestionably his, but at common law the executor or administrator held the title of the personal property of the decedent, while with us title to-personalty, as well as to realty, vests in the heirs, subject only to the right of the executor to take possession of it for specific purposes. At common law, then, the representative could sell personal property without restraint, so long as his acts were not fraudulent, but here-his power to sell is dependent upon the assent of the superior court. (Code Civ. Proc., secs. 1517, 1561; Wickersham v. Johnson, 104 Cal. 407; 43 Am. St. Rep. 118; 2 Wœrner's Law of Administration, sec. 331.)
The provisions of the articles for the transfer of Levinson’s interest were incomplete, in that no price was fixed, and that no disinterested person was named who should fix the price. The executor, by assenting to the valuation put by the Newmans on-the partnership interest, assumed to supply the omission of the contract, and to fix a sum at which they might take the interest. [661]It is not claimed that the executor derived authority to make the sale from the will of deceased. As the articles fall short of conferring that power, he could necessarily derive it only from the court in the manner prescribed by statute. But under the statute it could be sold only “in the same manner as other personal property,” namely, by authority and consent of the superior court.
Had the contract of partnership determined the price, or prescribed some legal mode of ascertaining the price, the cases cited in the preceding opinion would be directly in point. Then the executor would have needed only to abide by the terms of the contract. (Janin v. Browne, 59 Cal. 37.) The wisdom or policy of the contract would have been none of his concern. But, under the facts, the necessity for the supervisory power of the -court to order a sale, and for the caution of the statute that before confirming the sale of the partnership interest the court or judge must carefully inquire into the ■condition of the partnership affairs, and must examine the surviving partner (Code Civ. Proc., sec. 1524), was as manifest as if there had been no contract.
But it is further said that the inventory and appraise-' ment were made in the manner usual during Levinson’s life, and that this established a custom by which the articles are to be interpreted. But a customary mode of valuing assets, with a view of determining and withdrawing profits, is radically different from the requisites of a fair and reasonable estimate of all assets with a view to segregating the share of a deceased partner for purchase by the others.
We think the conclusion inevitable that the'executor exceeded his authority in the settlement with defendants; that he did not, as is admitted, follow the statutory mode in making the settlement, and that there was no power for him to do so under the articles.
Leaving aside for the moment the question whether or not the goodwill was included in the settlement, we think the evidence overwhelmingly establishes, as the [662]trial court held, that the sum found by the Newmans under the inventory and appraisement to be the value of Levinson’s interest, and by the Newmans paid into the estate of Levinson, and received by the executor thereof, was not only a just amount, but indeed a very liberal amount. The evidence seems to be without conflict, and at least is strongly in favor of the respondents, that the appraised value put by the Newmans upon the interest of their deceased partner was greater than its actual worth. It was paid over and received, with knowledge then or soon afterward acquired of the claim of the Newmans that by the payment they took to themselves the deceased’s interest and title in the assets of the copartnership, and acquired the right to continue to conduct the business under the firm name. Thereafter the heirs, who were all of age, and who were represented throughout all court proceedings by their attorney, petitioned for, and, despite the protests of the executor, obtained a decree of partial distribution, distributing to them as of the property of the estate a portion of the moneys thus obtained from the Newmans. At the time when this decree was sought and obtained, the source from which the moneys came, and the circumstances under which it had been paid over to the estate, and the claims of the Newmans in regard thereto, were well known to them. Their opposing claim, during all of this time, seems to have been solely the one that the goodwill had not passed to the Newmans, and was still personal property, and a part of the assets of Levinson’s estate.
Having, under these circumstances, demanded and received the moneys so paid by the Newmans, the price having been fair and the transaction without fraud, we are of opinion that they are estopped from questioning the settlement while retaining the benefits of it, and from denying that there passed to the Newmans whatever would have passed under the terms of the contract had it been free from the defect above discussed.
What, then, would have passed, and what are appel[663]lants estopped from denying did pass ? Unquestionably there passed to the Newmans Levinson’s interest in the assets, as shown by the inventory and appraisement upon which the settlement was based. But the articles provide further that the survivors shall have the right to continue the business under the firm name of Newman & Levinson. This clause may be construed either as dependent or independent of the covenant ta purchase. If construed as dependent, then the contract was that upon purchasing under the inventory and appraisement the survivors would acquire the right to. continue the business under the firm name. In this view appellants would also be estopped from denying that there passed to defendants the right to conduct the business under the firm name. If, however, this clause is to be construed as independent, it is of itself valid and operative, and conferred this right upon defendants regardless of other considerations. In either case it must follow that the right to conduct the business under the firm name passed to the defendants.
There thus comes under consideration the question which originally, and for a long time, was* the sole point of difference between the parties, the question of the disposition of the goodwill; for it appears that, while the heirs from a very early date insisted that the goodwill still remained a part of the property of the estate, and should be inventoried and appraised as such, they made no objection to the valuation put upon the deceased partner’s interest, nor to the sale of that interest, saving that therein the goodwill had not been valued. There was no concealment nor secrecy nor fraud in this. The heirs were informed that the goodwill was not included, the contention of the executor and of the Newmans under the advice of counsel being that the goodwill, under the circumstances, did not become a part of the assets of the estate, but vested in the surviving partners.
While some of the earlier cases lean to the doctrine that, upon the death of one partner, the goodwill goes [664]to the survivors, the great weight of later decision is to the contrary. Thus, it is said by Bates on Partnership, volume 2, section 658: “It was once thought that upon the death of a partner his interest in the goodwill ceased, and it survived to the surviving partner as his own property; this was doubted in Crawshay v. Collins, 15 Ves. 218, and it is not now nor anywhere regarded as the law in trade partnerships, and, though inseparable from the business, is an appreciable part of the assets in which the estate of a deceased partner can participate.” Bindley says: “In the event of dissolution by death, it has been said that the goodwill survives, and there is a clear decision to that effect, but this is not in accordance with modern authorities. They are wholly opposed to the notion that the value of the goodwill as such belongs to the survivor.” (2 Bindley on Partnership, sec. 443.) And our code declares (Civ. Code, sec. 993): The goodwill of a business is property transferable like any other.
It is not necessary to enter upon a discussion of the character of this intangible property known as goodwill. The code solves many doubts by defining it to be the “expectation of continued public patronage.” (Civ. Code, sec. 992.)
Now the Newmans had purchased the interest of the ^estate in the assets as shown by the inventory, and had ■likewise acquired, as has been discussed, the right to • continue the business under the firm name. We are unable to perceive any difference between the acquirement of a right to conduct this business under a firm •name, and the acquirement of the goodwill of the business. In other words, every possible “expectation of -continued public patronage” to the business was gone when the right to conduct it under the firm name was parted with. If there were left anything of value, however shadowy and unreal, it might be ground for saying that the goodwill yet remained to the estate, but the interest in the assets, together with the interest in the right to conduct the business under the firm name, [665]having passed to the Newmans, nothing in the nature of goodwill was left.
But there is another and equally convincing view which may be taken of these matters. Counsel have cited some cases in which it is said that it is the duty of the survivors to sell the property, and the business, as a going business, and also to continue the business until this can be done. It may be that when a firm name is not composed of the name of the partners, but is a trade name only, different equities may arise, but we are sure in this case the Newmans could not have been required, in the interest of Levinson’s estate, to sell the right to continue the business in the firm name nor to sell the goodwill. There is not only the goodwill which belongs to the firm, but in a successful business each partner may have gained a business standing and a reputation which is of value to him. One who sells the goodwill of a business warrants by that very act that he will not endeavor to draw off any of the customers. (Civ. Code, sec. 1776.) If the surviving partners can be required to do this they are practically prohibited from pursuing the same business at that place, and that may be their only means of gaining a livelihood. When a partnership is dissolved by death, the survivors are absolved from all obligations, except to close out the partnership affair's and to account to the estate. They do not owe a duty to the estate of the deceased to abstain from business even in the same line as that in which the partnership was engaged.
We are forced to believe in this case that the articles of copartnership failed to provide, effectively, for a transfer of the interest of Levinson’s estate in the co-partnership to the surviving partners. The executor and his counsel were of the opinion that it did so provide, and acted accordingly. Though we are convinced that they were mistaken, we do not doubt that the estate of Levinson realized much more from the property than would have been possible if the firm had gone into liquidation, as they must have done in the absence [666]of the agreement. We think, therefore, that the agreement which the parties supposed they had made was to the material advantage of all concerned, and, had they provided for a valid method of determining the value of the interest of Levinson, it would have been legal as well as just.
For the lack of such method, however, the, transfer to the Newmans was unauthorized and void. The legatees, however, of Levinson’s estate were all of age, and the estate was solvent.
Knowing all of the essential facts, they demanded and received the proceeds of the sale over the protests of the executor and of the Newmans. These protests amounted to the claim that, unless the transfer to the Newmans was valid, the money should be returned to them. If the transfer was regarded as invalid, plainly that should have been done. The court could not distribute the money except upon the theory that it properly belonged to the estate. The Levinsons solicited and obtained such an adjudication, and they received the money so distributed.
No rights were or could have been reserved by the protest, styled a stipulation, which was filed by the Levinsons. The money was not voluntarily paid after the protest was made, but the payment was forced by the legatees. The protest does show, however, that the legatees knew, or at least suspected, that the executor and the surviving partners claimed that, the money in the hands of the executor was all that was coming to the estate from the partnership. It is stated, after admitting that the money was received by the executor “on account of the interest of said estate in the partnership assets,” as follows: “But it is not admitted by said petitioners, or any of them, that no further sum remains due, or is to become due, from said surviving partners, or either of them, or assigns, to said estate, or to said petitioners, or any of them.” There would have been no purpose in guarding against the implication if it had not been believed that the claim was that this was [667]all. That the legatees well knew the claim made by the surviving partners abundantly appears from the other evidence.
This was a ratification of the sale on the part of the legatees which can be avoided only for fraud discovered afterward, and then only upon a rescission and a restoration of all that they have received, or a showing of some excuse for not doing so.
The action is to compel the surviving partners to account for the interest of Levinson in the copartnership. But the moneys which were distributed upon the application of the legatees were paid for the entire interest of Levinson in the copartnership. To compel an accounting is to set aside or ignore that transaction. The money was not paid on account, and the legatees must have known that no such sum was due from the surviving partners to the estate, except upon the theory that they had purchased the interest of Levinson. The acceptance of the sum by the executor materially affected the condition of the surviving partners. But for that the concern would most likely have gone into-liquidation, and large liabilities for goods would not have been incurred. They did not understand that they were assuming these liabilities and the risks of trade for the benefit of the estate of Levinson, but for themselves.
Rehearing denied.