Bodey v. Cooper

Fowler, J., delivered the opinion of the Court. Charles A. Cooper died intestate on the 26th March, 1891, in the city of Philadelphia, seized and possessed of certain real estate situated in Cecil County, in this State. It is conceded that his personal estate is not sufficient to pay his debts, and hence the claims here in question, if otherwise valid, would be proper claims against the proceeds of sale of his real estate, which has been sold by decree of the Circuit Court of said county, passed in a cause therein pending, which was instituted at the instance and for the benefit of the widow and heir at law of said Cooper. In the Court below several accounts were stated by the auditor, but the one which was finally ratified, allowed one and rejected the other of the two claims which are involved n the cross-appeals now before us.

Both of these claims were filed by Howard Bodey, who has appealed from the order of the Court below so far as it rejects his claim based on a judgment which he recovered in a Pennsylvania Court against the Kindergarten Novelty Company, of which company the said Charles A. Cooper was a member when he died; and Ella J. Cooper, the widow of said Cooper., and next friend of his infant son and only heir at law, has appealed from so much of said order as allows said Bodey’s claim for rent claimed to be due him by the firm of Weston & Company, of which the said Cooper and one William H. Weston were the sole members. • We will briefly consider these claims in order to ascertain whether, under all the circumstances of this case, they should be allowed as against the estate of said Cooper. 1. The judgment claim alone is involved in Bodey’s appeal. ⁶²⁷ As we have already said, this judgment was recovered in Pennsylvania against the Kindergarten Novelty Company, Limited, a partnership association formed under the laws of that State. Pur don's Digest, p. 1086. The appellant Bodey contends that the said judgment should be paid by Cooper’s estate, he having been a member of said Novelty Company,; because the Pennsylvania statute under which said company-was organized provides that the members of any such partnership association shall not be liable to any judgment which shall be recovered against such association, or for any of its debts unless an execution shall first be issued against it and returned not satisfied, in which case execution “may be issued against any of the members to the extent of the portion of their subscription respectively, in the capital of the association not then paid up.” If this personal liability can be enforced at all in the way here attempted, it must be shown, first: that execution has been duly issued against the association and returned not satisfied ; and secondly, that the member proceeded against has not paid up his subscription to the capital.

The first fact is sufficiently established by the evidence of the record of the Pennsylvania judgment and the proceedings thereon, by which it appears that upon execution issued by said Bodey against said Novelty Company he was able to realize from the property of said company only a very small portion of his judgment. But in regard to the consequences resulting from the other fact, namely, a failure to pay the amount of capital subscribed for, there is more difficulty. If it should be conceded that in this case Cooper did not pay the amount of capital of the association which he agreed to pay, he would, if living, upon a compliance by the creditors with the provisions of the statute, be liable for its bona fide debts which were created while he was a member, to the extent and in the manner by said statute provided. But in this case the judgment creditor of the association is seeking to enforce his claim not against the member, but against the estate of one who is no longer a member, his ⁶²⁸ connection with the association having been dissolved by death.

And in addition to this it also appears that the judgment was confessed by the association in favor of Bocley subsequent to the death of Cooper, and that, too, upon a cause of action, a single bill, executed by the association after Cooper’s death, in recognition of a claim against it which is not satisfactorily shown to have had any existence during his life. Such a claim, we do not think should be allowed as against Cooper’s estate. It was most strongly •contended, however, that the claim is fraudulent and was made up for the purpose of despoiling the estate of Cooper, he being the only one connected with the insolvent association who had any pecuniary responsibility. But we deem it unnecessary to discuss this part of the case further, for we are satisfied that upon a fair construction of the statute relied on by the appellant, Bodey, that the estate of said Cooper should not be burdened with the payment of this claim.

The appellant's judgment is against the association, and except by reason of the statute of Pennsylvania relating to the formation of limited partnership associations, or because of some general rule of partnership law applicable to all partnerships, his remedy would be against the association alone. The association was formed, it may be assumed, for the purpose of avoiding the unlimited and general liability of a general partner in an ordinary commercial partnership, and therefore, unless we find something in the statute itself which makes the estate of a deceased member liable for a debt of