Smith v. Walker

Citations

• 38 Cal. 385

Syllabus

<p>Pkacuce—Repebence.—When the Court has decided the principles upon wMch an account should be taken and settled, upon an order of reference, it is not competent for the referee to review the action of the Court; but it is his duty to take the account in pursuance of the principles thus settled.</p> <p>Idem.—If errors occur in determining these principles, the party which seeks to have them corrected by the appellate Court must do so by some proceeding addressed directly to that end; they cannot be reviewed in this Court on an application for a new trial, on the ground that the referee adopted and applied those principles in the adjustment of the accounts.</p> <p>Sobvivxng Pabtneb in Real Pbopebti-__The surviving member of a partnersMp owning real property is something more than a mere tenant in common with the representative of the estate of the deceased partner. He is a trustee for the purpose of winding up the affairs of the firm, and is accountable for ilic value of the use and occupation of the landed estate of the partnership.</p> <p>Surviving Partner and Administrator of Deceased Partner—The surviving partner is bound to account and pay over to the administrator of the deceased-partner all the profits of the realty, as well as that of the personalty that rightfully belong to the estate, notwithstanding he may have purchased the interest of the heirs in the estate, or of the community interest of the surviving wife of the deceased partner; and it is for the Probate Court to distribute the estate to the. parties entitled.</p>