A suit by parties beneficially interested in the estate of a deceased partner could not be maintained against both his executors and surviving partners, in the absence of special circumstances; but collusion was not the only ground for such a suit; and the suit might be maintained where the relation between the executors and surviving partners was such as to present a substantial impediment to the prosecution by the executors of the rights of the parties interested in the estate as against such partners.
A gift and devise by one of the partners in a cotton-mill of all his property, estate and effects to trustees, upon trust, to lay out and invest two-third parts thereof upon real or good personal security, or to transfer the same, and allow it to remain in the concern, of which he was one of the co-partners, in the names of his trustees, and alter, vary, change and transpose the same as they should think fit, and stand possessed of the same, upon trust, for the two sons of the testator, with certain powers of advancement out of their respectives shares: Held, to authorise the executors to continue the monies of the testator in the trade, but not to trade with the monies by becoming partners in the firm.
The surviving partners of a testator dealing with the property of the testator, with the knowledge that it belongs to his estate, are bound to inquire into the trusts on which it is held, and are liable as if they had actual notice of those trusts.
A suit by parties beneficially interested in the estate of a deceased partner cannot be maintained against, both his executors and surviving partners, in the absence of special circumstanees ; but collusion is not the only ground for such a suit ; and it may be maintained where the relation between the executors and surviving partners is such as to present a substantial impediment to the prosecution by the executors of the rights of the parties interested in the estate as against such partners.
It is not to be presumed that the annual stock-taking by a partnership truly represents the interests of the several partners in the firm; but it may or may not do so, according to the purposes for which and the mode in which it is made up.
Judges:
Turner V-C
Citations:
[1851] EngR 524, (1851) 9 Hare 141, [1851] 68 ER 449
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Roberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 07 May 2022; Ref: scu.296840