#### Snyder, Admr., Appellee, *v.*Rowe et al., Appellees; LePontois et al., Appellants.

(No. 1442

Decided November 15, 1943.)

*Mr. Kenneth M. Petri,*for appellee William R. Snyder, Administrator.

*Mr. Dean C. Talbott,*for appellees Arlo Rowe and others.

*Mr. Walter C. Bohrbacher*and *Mr. Charles F. Schaber,*for appellants;

By the Court.

This is an appeal upon questions *519of law, from a judgment of the Court of Common Pleas of Crawford county, Ohio.

The action is for declaratory judgment. It was brought by William R. Snyder, administrator of the estate of Edith A. Seeman, deceased, against Arlo Rowe, Neva R. Barg, Dorothy Post, Walter B. Snyder and William R. Snyder, heirs at law of Ed. W. Seeman, deceased; the unknown heirs at law of Ed. W. See-man and Edith A. Seeman, both deceased; and Helen LePontois, Harold J. Seeman, Lela Randall, Roy Linton, Ida Hothem Weaver, John C. Hothem, Harry Hothem, Victor Hothem, Edwin Hothem, lone Hothem, Elma E. Whitmer, Herman E. Seeman, Dennis Deible, Leslie Deible, and Henry Mayer, heirs at law of Ed. W. Seeman, deceased.

While the pleadings present a number of matters as to which a declaratory judgment, was asked, and while the declaratory judgment rendered by the Common Pleas Court constitutes a declaration of rights on all the matters presented by the pleadings, the appellants, who are the heirs at law of Ed. W. Seeman, have in their assignments of error and briefs, limited their claims of error to the claim that the declaratory judgment rendered by the Common Pleas Court is contrary to law insofar as it declares that a certain promissory note, in the principal sum of $3,500 with an indorsement thereon of the payment of $500, among the effects of Edith A. Seeman, signed and executed by Harold J. Seeman and payable to the order of Edith A. Seeman, is not property which came to Edith A. Seeman, relict of Ed. W. Seeman, from her deceased spouse and consequently is not property which passes, under the provisions of Section 10503-5, General Code, one-half to the heirs of Ed. W. Seeman and one-half to the heirs of Edith A. Seeman.

*520Our consideration of this appeal will therefore be limited to this claimed error.

The facts material to a consideration of this appeal, disclosed by the bill of exceptions, are as follows:

Ed. W. Seeman, also known as E. W. Seeman, husband of Edith A. Seeman, died intestate February 15, 1933, survived by his widow but leaving no parent or children or their legal representatives surviving him.

Edith A. Seeman died intestate on-the 14th day of August, 1941, leaving no parent or children or their legal representatives surviving her.

William R. Snyder, plaintiff, was appointed administrator of the estate of Edith A. Seeman on the 1.8th day of August, 1941.

Ed. W. Seeman and Harold J. Seeman were partners engaged in carrying on a drug business and store in the city of Galion and the partnership and business were in existence at the time of the death of Ed. W. Seeman.

No administration of the estate of Ed. W. Seeman was had, and there were no proceedings as provided for by Sections 8085 to 8098, General Code, prescribing the method of winding up the affairs of a partnership upon the death of a partner.

On April 3, 1933, subsequent to the death of Ed. W. Seeman, Edith A. Seeman, by written instrument in which she is described as “widow and next of kin and heir at law of Ed. W. Seeman, deceased,” for a purported consideration of $1 and other good and valuable considerations, but actually for a consideration of $3,500, evidenced by the note in question and payable as therein provided, did “grant, sell, transfer and set over to H. J. Seeman, partner, all the goods, wares, stock in trade, fixtures, merchandise, accounts receivable, mortgage of F. E. Barr, furniture in said store of E. W. Seeman *& Go.,*radio tubes and testor all of *521which are located and situated in the Retal Drug Store, heretofore owned and operated by E. W. See-man *& Go.,*Galion, Ohio, and together with the good will established by said company. ’ ’

In such instrument, Edith A. Seeman covenanted with H. J. Seeman that the stock in trade, fixtures, etc., were free and clear of all incumbrances and that she had good right to bargain and sell same.

Harold J. Seeman paid to. Edith A. Seeman during her lifetime, $500 of the principal of the note, together with the interest to January 1, 1941; and on May 21, 1942, paid the balance of $3,208.75 owing on the note, to William R. Snyder, administrator of the estate of Edith A. Seeman.

Section 10503-5, General Code (116 Ohio Laws, 389), in effect at the time of the death of Edith A. Seeman, upon the provisions of which the lawfulness of the declaration complained of depends, was as follows:

“When the relict of a deceased husband or wife dies intestate and without issue, possessed of any real estate or personal property which came to such relict from any deceased spouse, by deed of gift, devise, bequest or descent, then such estate, real and personal, except one-half thereof which shall pass to and vest in the surviving spouse, if any, of such relict, shall pass to and vest in the children of the deceased spouse from whom such -real estate or personal property came, or the next of kin of deceased children. If there are no children or next of kin of deceased children, then such estate, real and personal, except for the one-half passing to the surviving spouse, if any, of such relict, shall pass and descend one-half to the brothers aiid sisters of such relict, or the next of kin of deceased brothers and sisters, and one-half to the brothers and sisters of the deceased spousé from whom such real estate or personal property came, or the next of kin of deceased brothers and sisters.”

*522In the case of *Guear*v. *Stechschulte, Admr.,*119 Ohio St., 1, 162 N. E., 46, the Supreme Court held that the provisions of Section 8577, General Code (110 Ohio Laws, 15), similar to the provisions of Section 10503-5, General Code, above set forth, were applicable only to the identical property which comes to an intestate from a former deceased husband or wife, and have no application to property acquired by such intestate after the death of the former deceased husband or wife even though such property is purchased from the proceeds of property coming from such former deceased husband or wife, or is the increase or accumulations of such property.

The same holding was made in the case of *Wilson*v. *Eccles,*119 Ohio St., 184, 162 N. E., 797.

In the case of *Knauss, Admr.,*v. *Knauss,*58 Ohio App., 183, 16 N. E. (2d), 483, in which the provisions of Section 10503-5, General Code, above set forth, were under consideration, the same holding was made as in the abpve cases.

In the light of these holdings, the question to be determined in the instant case, both Ed. W. Seeman and Edith A. Seeman having died intestate, is whether the promissory note, above mentioned, is the identical property which came to Edith A. Seeman from her former husband, Ed. W. Seeman.

As the statutory method, prescribed in Sections 8085 to 8098, General Code, of winding up the affairs of the partnership upon the death of the partner, was not resorted to in the administration of the estate of Ed. W. Seeman, the rights of the parties interested therein are governed by the rules of common law.

At common law the surviving partner, in the absence of a contract to continue the partnership after-the death of the deceased partner, has the sole right to wind up the business. Addams & Hosford’s Ohio *523Probate Practice (3 Ed.), 378. For many purposes a surviving partner is considered tbe legal owner of all tbe property and assets belonging to tbe partnership, with power to sell or transfer them. The heirs of the deceased partner have no interest, as such, in the property of the firm. Their only remedy is to compel the surviving partner to account for the surplus after the settlement of all the partnership liabilities. 40 American Jurisprudence, 335, Section 296. However the right to compel an accounting is not the only right the heirs of the deceased partner have at common law in relation to the partnership property. In addition to this right, they have interests as distributees therein which they have a right to assign irrespective of whether an administrator is appointed for such deceased partner’s estate.

In the instant case, Edith A. Seeman, as the sole heir of Ed. W. Seeman and sole distributee of his estate, had the right under the common law to compel Harold J. Seeman as surviving partner of the firm of E. W. Seeman & Company to account for the surplus after the settlement of all the partnership liabilities, and also had the right under the common law to sell and assign her interest as a distributee of such estate in the partnership property.

If she had exercised her right to compel an accounting, and the note in question had been received by her as a result of such accounting, it would have constituted a payment to her of her distributive share in the estate and would have been the identical property. which came to her from her deceased husband. But as shown by the statement of facts, she did not exercise her right to compel an accounting, but instead exercised her right to sell and assign her interest, as a distributee in the estate, in the partnership property, and the note received by her was the consideration for *524such sale and did not constitute a distributive share in the estate.

As the note did not constitute a distributive share in the estate, it is not identical personal property which came to her from her deceased spouse by descent, within the purview of Section 10503-5, General Code, and the judgment of the Common Pleas Court so holding’ is not contrary to law.

For the reasons mentioned, the judgment of the Common Pleas Court will be affirmed at costs of appellants.

*Judgment affirmed.*

Guernsey, P. J., Jackson and Middleton, JJ., concur.