Rosenzweig v. Thompson

Miller, J., delivered the opinion of the Court. ' This appeal is from a decree dismissing a bill in equity filed by the appellant. The case was submitted on bill and answer without a replication or any proof, and therefore the averments of the bill so far as they are denied by the answer are out of the case. The facts are briefly these: John F. Kersey died intestate in October, 1884, leaving the appellant his sole-heir-at-law, and distributee of his personal estate, upon-which his widow took out letters of administration. At the time of his death, Mr. Kersey was a partner in the firm of “Thompson, Kersey & Co.” and the greater part of his estate consisted of his interest in the assets of that firm.

His death, of course, dissolved the partnership, and the right and duty of liquidation devolved upon the surviving part-tiers. In July, 1885, about nine months after his-death, the appellant filed her bill against his administratrix and the surviving partners for an account of the affairs of the firm. The ground upon which the bill proceeds is, that there is collusion between the administra ⁵⁹⁵ trix and the surviving partners to hinder and delay the complainant in the obtention of her rights, and that the relation of the administratrix and the surviving partners is such as to present a substantial impediment to the prosecution by the former of the rights of the complainant against the surviving partners, and that the administratrix refuses to require the surviving partners to account. But the answer emphatically denies not only the general charge of collusion, but also all the specific charges from which any inference of collusion could be drawn.

We have carefully considered the bill and answer and can find nothing in the former which is left undenied in the latter from which a case of collusion can be made out. If there has been such misconduct on the part of the surviving partners in settling up the affairs of the late firm, as to afford good ground for the administratrix of the deceased partner to call for an account, it is her duty to file a bill against them for that purpose, in order to protect the estate of her deceased husband and the rights of his distributee, and if she fails to discharge this duty, her administration bond will be responsible to the distributee for such neglect. It is said however by the appellant’s counsel, that a distributee or legatee of a deceased partner has always the right to file a bill for an account like the present, whether there has been any such collusion or not. Some cases are to be found in the English Reports, which apparently sustain this position; The one that has been most strongly pressed upon our attention, is that of Bowsher vs. Watkins, 1 Russ. & Mylne, 277, where, as reported, the decision was that residuary legatees may sustain a bill for an account, against the executor and the surviving partner of the testator, though collusion between the executor and the surviving partner is neither charged nor proved.

The judgment given in that case by Sir John Leach, is very brief, and assigns no reasons. The report simply ⁵⁹⁶ states that “the Master of the Rolls was of opinion that the plaintiff had a right to sustain the hill against the surviving partner.” But the authority of that case, as sustaining the broad general proposition contended for, though it seems to have met the approval of Lord Chancellor Brougham in Holland vs. Prior, 1 Mylne & Keen, 244, has been thoroughly discredited by the more recent decisions. Thus the Master of the Rolls (Lord Langdale), says of it in Davies vs. Davies, 2 Keen, 539, “I well recollect that there were special circumstances which induced Sir John Leach to come to the conclusion he did in that case, and that the decision was far from establishing