COOK V. THE
ADMINISTRATOB.
69
States, and, as the Merchants' National was notified of the pendency of that suit and took part in the defence, it must . abide by the result. The judgment of the district court is affirmed.
CoOK
v.
THE
ADMINISTRATOR, etc., of
ROGERS.
(Circuit Court, S. D. Ohio. February, 1880.) 1. PARTNERSHIP-EsTATE OF DECEASED PARTNER.-Partnership agreement and will of a deceased partner construed, and held not to render
the general assets of the estate of the decedent liable for partnership debts contracted after his death.
On demurrer to the answer. The issues presented by the pleadings are fully stated in the opinion. John W. Herron, for plaintiff. J. F. Baldwin, for defendant. SWING, D. J. This suit is brought to recover of the defendant the amount of two promissory notes-the first, given by the Sectional Dock Oompany to the order of Thomas P. Morse & Co. for $12,000, dated June 4, 1873, and payable at 90 days; the second, given by Thomas P. Morse and John D. Daggett to the Sectional Dock Oompany for $4,000, dated April 4, 1873, and payable at 90 days,-both of which were indorsed, and of which it is alleged that the plaintiff is now the holder and owner. The petition alleges, in substance, that on the seventeenth day of November, 1857, Rowland Ellis, Jr., Patrick Rogers, .John Daggett, Thomas Morse, and Mary Thomas formed a copartnership in the city of St. Louis, in the state of Missouri, for the purpose of carrying on the business of docking and· repairing steamboats and other vessels in said city; that it· was provided in the articles of copartnership that in the event of the death of either party to said agreement said copartnership should not be dissolved, but the interest of said deceased partner should be continued and represented by the
70
FEDERAL REPORTER.
legal representatives of said deceased partner; that the name should be "The Sectional Dock Company;" that said copartnership carried on business under said agreement until the fifth day of December, 1870, when said Patrick Rogers died, in the city of Cincinnati, leaving a will, which was duly admitted to probate in Hamilton county, Ohio; that by the terms of said will Robert C. Rogers was appointed executor of his estate, and was directed to continue the interest of decedent in the said Sectional Dock Company, at St. Louis, until the same could be disposed of; that said Robert C. Rogers did continue the said business as executor, representing the interests of the estate of said Patrick Rogers in said until his death, when the defendant, Joseph Rogers, was appointed administrator of said estate, with the will annexed; that said Robert C. Rogers, as executor of said Patrick Rogers, deceased, took possession, by virtue of the will of Patrick Rogers, of the interest of said estate in the Sectional Dry Dock Company, at St. Louis, and of the Marine Railway & Dry Dock Company, of Cincinnati, and of the Louisville & Cincinnati Mail Line Company, and that he collected dividends therefrom, and that the estate realized large sums of money from the second and third properties so mentioned, and still holds interests therein undisturbed, and that whatever sums have been realized by said estate from either of said properties is liable for the debts contracted in carrying on the others, and especially for the claims sued on in this case; that by the laws of the state of Missouri, where said copartnership was formed, and where the notes were executed, the liability of partners is joint and several, and, therefore, each partner is liable separately upon a debt of said firm. To this petition the defendant has filed an answer containing three separate defences, the second of which is only necessary to be noticed, and is as follows: "For a further defence to said first cause of action, he says it is true that prior to the fifth day of December, 1870, said Patrick Rogers was a partner in the copartnership known by the name of the Sectional Dry Dock Company named in the petition.
COOK tI. THE ADMINISTRATOa.
71
"He says it is true that the persons named in the petition entered into written articles of copartnership on said seventeenth day of November, 1857, and that said written articles of copartnership contained the following provision, to-wit: 'It is further agreed that, in the event of the death of either party to this agreement, this copartnership shall not on that account dissolve, but the interest of such deceased party may be continued and represented by the legal-representatives of said deceased party, or otherwise disposed of by them.' "He says that this is the only agreement relating to said partnership. He adniits the death of Patrick Rogers, the execution and probate of his will, and the appointment of Robert C. Rogers as executor, and of defendant as administrator, with the will annexed; that the only clause in said will authorizing the continuance of said copartnership after the testator's death is as follows: 'It is my will and direction that my share and interest as one of the partners in the Louisville & Cincinnati Mail Line Company, and also my share and interest as one of the partners in the Marme Railway & Dry Dock Company, of Cincinnati, and also my share and intermit as one of the partners in the Sectional Dry Dock Company,of St. Louis, Missouri, shall not cease nor said partnership be determined by reason of my death, but that my share and interest in each of said partnerships shall continue and be kept up and represented by the executor of this, my will, in my stead, until such time as in his judgment it shall be most advantageous for my estate to sell out or settle up and close the said shares and interests respectively, and to that end I do hereby fully authorize, empower, and direct the executor of this my will to hold, manage, and represent all my shares and interests in said companies, respectively, for the benefit and use of those who shall be entitled to my estate, until such time as in his discretion and judgment it shall be most advantageous for my estate to sell or close and settle the same, and then to sell out my shares and interests in said companies, or either of them, or settle and close the same by agreement with the partners, whichever he considers best,
72
and upon such terms and for such price al he shall deem proper and sufficient.' " A similar provision is made in said will as to the testator's share of stock in the Niles Works. Said will next makes provision for the testator's sister, Letitia McNamara, and then follows the residuary clause ia said will, as follows: "Subject to the ,foregoing provisions, and to the dower, distributive share, and allowance for my wife provided by law, I give and devise to each of my five children, Robert, Sarah, Thomas, Joseph, and Fenton, one-sixth part, respectively, of all the residue of my estate, to them and their respective heiTs, subject, however, to the following deductions: From the share of Robert, $6,750, being the amount heretofore advanced to him by me; from the share of Sarah, $6,750, being the amount advanced to her; and the other and remaining equal one-sixth part thereof, less the sum of $5,000 heretofore advanced to my deceased daughter, Mary, I give and devise to my said son, Thomas, and his heirs, to hold the same in trust for the two children of my said deceased daughter, Mary, until they become of age, and upon their becoming of age to convey to each, respectively, the equal one-half of said one-sixth part of my estate, and in the meantime to apply the income of their respective shares to their proper education and maintenance, so far as necessary, and the surplus, if any, to invest and hold upon the same trust and use." Said will also provides for the payment of the testRtor's debts, and authorizes his executor to spend money to purchase, for the benefit of his estate, the fee-simple title to the Merchants' Hotel property, in Cincinnati, and to complete all contracts of the testator for the purchase or sale of real estate; that the clauses of said will quoted and referred to are all the parts of said will relating to the disposition of the testa.tor's estate. And the defendant says that the said executor had no power, under said will, to invest any part of the estate of said testator, in said copartnership, the Sectional Dock I
COOK V. THE lDMINISTRATOl\.
Company, except that which was so invested in the life-time of said testator and that said will does not render the estate of the testator not already invested in said partnerJhip liable to the payment of any debts of said partnership contracted a,fter said testator's death. He says that said will limits the responsibility of said testator's estate for debts of said part. nership to be contracted after his (said testator's) death to that part of said estate already embarked in said partnership at the death of .said testator, and he denies that said estate is liable to the plaintiff beyond the amount of its property and assets embarked in said copartnership. To this point the plaintiff demurs generally. -Two questions are involved tn the determination of this demurrer: First, by virtue of the contract of partnership and the provisions of the will, did the general estate of the testator become liable for debts contracted by the partnership after the death of the testator? Second, if it did not, did that part of the estate belonging to and arising out of other partnerships, which it is claimed the executors were authorized to continue, become liable for the debts of this partnership? Did this liability of the general estate arise out of the terms of {!he agreement creating the partnership? The agreement was not for any definite number of years; there- could be no question, therefore, that the death of either partner, of itself, would dissolve the partnership; but, even if it had stipulated for duration of a particular period, the death of either partner within that period would have worked its dis. solution, unless expressly stipulated that it should not have that effect. This agreement provides simply against that result by say· ing that "in the event of the death of either party to this agreement this copartnership shall not, on that account, be dissolved, but the interest of such deceased party may be continued'and represented by the legal representative of said deceased party, or otherwise disposed of by them." It does not provide that it shall be continued notwithstanding the death J but that it may be. There is no binding obligation upon the part of Patrick Rogers that this copartnership should 'con-