Robertson v. Burrell

Citations

• 110 Cal. 568
• 42 P. 1086
• 1895 Cal. LEXIS 1099

Syllabus

<p>Estates of Deceased Persons—Accounts of Surviving Partner—Action by Heirs—Settlement with Administrator.—The heirs of a deceased person are not the proper parties to maintain an action for an accounting and settlement of a partnership between the decedent and a surviving partner or his representatives, and they have no legal capacity to do so; but the surviving partner is required to account not with the heirs, but with the executor or administrator of the deceased partner, regardless of whether the partnership assets consist of real or personal property, or both.</p> <p>Id.—Laches—Stale Demand — Settlement of Partnership.—Where a deceased partner died thirty years before the commencement of an action by his heirs against the administratrix of the surviving partner to compel a settlement of the partnership, and it appears that his widow, the mother of the plaintiff, died seven years after the death of their father, and that no administration was ever had upon the estate of either of them, and that no demand was made upon the surviving partner during his lifetime for a partnership accounting by any one, and the complaint in such action does not aver that the widow did not know of the partnership, nor plead any facts and circumstances showing that discovery of the partnership could not have been sooner made by the plaintiffs, and that plaintiffs have not neglected nor slept upon their rights, the complaint is a stale demand and shows no equity.</p> <p>Id.—Knowledge of Partnership by Mother of Plaintiffs—Pleading— Admission.—Where the complaint does not aver that the widow, mother of the plaintiffs, did not know of the partnership, the complaint must be construed as admitting that she did know thereof.</p> <p>Id.—Joint Eight of Action—Effect of Knowledge—Bar of Ancestor and Heirs.—Where a right of action is joint, knowledge which would bar it as to one of the plaintiffs would bar it as to all, whether in law or in equity; and, where a right of action is barred as to