Bruns v. Heise

Schmucker, J., delivered the opinion of the Court. This is an appeal from a decree of the Circuit Court No. 2, of Baltimore City, sustaining the demurrer of the appellees to a bill for contribution, filed against them by the appellant, and dismissing the bill. The bill alleges the following material facts: On the 9th of November, 1892, the appellant and the late William Heise, who were at the time co-partners in the lumber business in Baltimore City under the firm name of Heise & Bruns, entered into an agreement that in the event of the death of either of them the said business should be continued under the same firm name for five years by the survivor and such representative of the deceased partner as might be named in his last will and testament. William Heise died shortly after the making of the agreement, having by his last will designated his wife, Mary Heise, to represent his estate in the firm of Heise & Bruns under the terms of the agreement.

He also by his will made his said wife his executrix and the life tenant of his estate with remainder to his eight children whose names are mentioned in the bill. Prior to the death of William Heise his son William and John T. Bruns, the son of his partner, were each given an interest in the profits of the firm which they continued to retain and enjoy until its final dissolution at the death of Mary Heise in 1899. After the death of.William Heise, the elder, his widow, Mary Heise, executed a formal acceptance of his designation of her to represent his interest in the firm and covenanted to execute the terms of the agreement of November 9th, i8gz, ¹⁶⁵ between him and John Bruns, The partnership business was then continued, for the benefit of the estate of the deceased partner to the extent of his interest therein, for the five years provided for in the agreement. At- the expiration of that time it is alleged in the bill that “Mary Heise, widow, as executrix and life tenant with the assent and acquiescence of her children, the remaindermen, continued the estate in the said business, subject to the vicissitudes of the same and the obligations accrued and accruing upon said estate” until her death in 1899.

After her death proceedings for the dissolution of the partnership and the winding up of its affairs were instituted in the Circuit Court of Baltimore City and were still pending at the filing of the present bill. John Mehring and Margaret Horstman were creditors of the original firm of Heise & Bruns for loans made in 1884 which were, upon the payment of the interest thereon as it fell due, from time to time extended until the final dissolution of the last firm after the death of Mary Heise in 1899. It appearing after the dissolution that the firm’s assets were insufficient to pay its debts in full, those two creditors by threatening suit against the appellant compelled him to pay the balances of $2,500 and $1,300 due to them respectively. The bill then alleges that William Heise, Jr., and John T. Bruns, two of the surviving partners of the firm have no individual estate but that the appellees as administrators d. b. n. c. t. a. of the estate of William Heise, the elder, have received more than sufficient personal estate of their decedent to an swer to one-half of the amounts which the appellant was compelled to pay to Mehring and Mrs. Horstman in payment of the firm’s debts.

The prayer of the bill is that the defendants as administrators d. b. 11. c. t. a. be required to pay and contribute to the appellant one-half of the partnership debts so paid by him. William Heise, Jr., and John T. Bruns, who became partners in the firm by sharing in its profits are not made parties to the case, although the former is a defendant in his