Opinion
(June Term, 1860.)
Where an intestate and his administrator had been partners in building a mill, it was Held that the administrator had no right to retain of the assets for work done on the mill after the death of his intestate.
DEBT, tried before Shepherd, J., at a Special Term, January, 1860, of GUILFORD.
McLean for plaintiff.
Morehead for defendant.
The action was brought against the defendant as the administrator of one Othniel Hiatt. The defense relied on was the plea of fully administered and no assets. A reference was made to Mr. Swaim, a commissioner, to state an account of the assets, and the only question in the case arises on an exception to his report. It appeared that the defendant's intestate and the defendant were engaged in building a mill on Deep River, in copartnership; that they both being mechanics, worked at the building, and had each done several hundred dollars worth of work at the time of the intestate's death; that after that event the defendant continued to work at the mill, and then on a petition to the county court the mill was sold by order of the court, and the intestate's estate received the benefit of half the proceeds; the defendant, as copartner, receiving the benefit of the other half. In the commissioner's report the defendant charges the estate of his intestate with "the value of the improvements made by him on the said grain-mill after the intestate's death and before the sale of the land, per decree, $354.64," which was allowed by the commissioner and excepted to by the plaintiff. It was agreed that if the said exception was sustained the plaintiff was entitled to a judgment for his debt, and that if it was not sustained the defendant was entitled to the judgment. The court below sustained the exception, and the defendant appealed.
It will be seen from the written agreement on file (510) that the case is made to turn upon the allowance or disallowance of the first exception on the part of the plaintiff to the account taken of defendant's assets. If the exception be allowed, the plaintiffs are entitled to a judgment for their debt; if it be not allowed, they submit to a nonsuit. The exception, we think, was properly sustained in the Superior Court. The $354.64 which the administrator claimed to retain was due him by reason of certain expenditures in completing a mill after intestate's death, in which the administrator and his intestate were concerned as partners. The partnership being dissolved by the death of one partner, no further partnership liabilities could be incurred. The debt, therefore, did not stand upon the footing of a partnership debt, but was at best a demand for money paid to the use of his intestate's estate, which a court of equity might possibly assist him in the recovery of, if assets had been left subject to the payment of such a claim.
To sanction this credit in the administrator's account would be to allow him to retain his own demand, upon an open account, in preference to the bond debt of the plaintiffs, which is against law. The judgment should be
PER CURIAM. Affirmed.