Caskie's Ex'ors v. Harrison

Citations

• 76 Va. 85
• 1882 Va. LEXIS 7

Syllabus

<p>1. Surviving Partner.—At law he hath exclusive control over the firm assets in order to wind up the concern. In equity he is merely a trustee to pay the debts and divide the surplus.</p> <p>2. Idem—Executor,—Where same person is surviving partner and executor of his deceased co-partner, and has funds actually in hand not needed to pay the firm debts, he ought to pay them to himself as executor.</p> <p>3. Executors—Sureties.—The general rule is that where same person is liable to pay money in one capacity, and to receive it in another, the law presumes he has done his duty within his power, and holds his sureties responsible in case he fails to do it. Same rule applies to executor indebted to his testator at time of qualification.</p> <p>4. Co-executors—Liabilities—General rule—Exception.—Executor is liable only for what he receives, and not for the devastavit of his companion ; except where by his laches he suffers his companion to receive and waste the assets when by reasonable diligence he hath power to prevent it.</p> <p>5. Idem—Joint bond.—Where two or more execute a joint bond they stand in the relation of principal and surety—each as principal quoad his own acts, and as surety quoad the transactions of his companion.</p> <p>6. Bonds.—Where the court hath power to take a bond, the liability of the obligors is ascertained from the bond itself, and not from the order of the court reciting the fact of its execution.</p> <p>7. Surviving Partner—Executor—Case at bar.—John, of firm of J & J K C, died, testate, in September, 1867. Firm continues until January, 1868, when James is to be deemed surviving partner. James and two other sons of John are named and qualify as executors. The order of the probate court recites that they gave a joint and several bond without security, the will directing that none be required of them. The firm owed no debts. At decease of John, James owed the firm $10,000, and before September, 1868, he had collected firm funds to the amount o