Nelson v. Hayner

Citations

• 66 Ill. 487

Syllabus

<p>1. Partnership—relation of surviving partners after death of one, to representatives of deceased partner. The death of a partner is, ipso facto, from the time of the death, a dissolution of the partnership, however numerous the association may be. But a community of interest still exists between the survivors and the representatives of the deceased partner, and the latter have a right to insist on the application of the joint property to the payment of the joint debts, and a due distribution of the surplus. So long as these objects remain to be accomplished, the partnership may be considered as having a limited continuance.</p> <p>3. Same—remedy against surviving partner. If the surviving partner does not account in a reasonable time, a court of chancery will grant an injunction to restrain him from acting, and appoint a receiver and direct the account to be taken.</p> <p>3. Same—-fiduciary relation of surviving partner. In equity, the surviving partners are treated as trustees, with the fiduciary relation existing between them and the representatives of the deceased partner, of trustees to cestuis que trust.</p> <p>i. Same—effect of the statute of 1869 on the relation. While the statute of 1869, in respect to the settlement of estates of deceased partners, provides some remedies which may be regarded as cumulative, it does not change the nature of the relation between the surviving partners and the representatives of the deceased partner, and does not affect the right of the latter to have the joint property applied to the payment of the joint debts, and a due distribution of the surplus, but is rather confirmatory of these rights, as previously recognized in courts of equity.</p> <p>5. Same—surviving partners can not purchase of themselves the property of thelate firm. Where, after the death of a partner, the survivors, one of whom was the executor of the will of the deceased partner, formed themselves into a new firm and purchased from themselves the whole of