Polynesian. [volume] (Honolulu [Oahu], Hawaii) 1844-1864, 1862-10-25
Ghe polpnesian.
COURT-In Equity.
VIM. A. Aldrich, Ex'r of
the Will of r. W. Holt,
James Robinson and
Robert Lawrence.

James Robinson and
| Robert Lawrence.
Before Justice ROBERTSON. as Vice Chancellor
| Per Curian-The plaintiff has filed Il bill in
Equity, executor of the will of the late Robert
w. Holt, setting forth in substance that the said
Robert W. Holt in his life time, a copartner
with the respondents in the firm of James Robin
| son 4 Co., of Honolulu that said Holt, Robinson
and Lawrence were the owners, as tenants in COM
mon. of large amount of real estate, purchased
with the funds of the partnership. and held and
used as partnership property; that the said Holt
died on the 9th dav of July last, leaving a will
which has been duly admitted to probate and by
which will the plaintiff is appointed sole executor
and trustee for the deyisees and that the real
estate held In common by the said cOpartners
not be satisfactorily or advantageOusy divided be-
tween the respondents surviving partners, and
the plaintiff executor aforesaid, it is desirable
and necessary that the real estate should be sold
and the proceeds thereof divided. And the plain
tiff prays order of sale accordingly and that the
respondents. together with himself, may be
thOrlZed and required to make such sale, and to
ecute all necessary conveyances.
The respondents have filed an answer, admit
ting the copartnership with them of the late Rob-
ert W. Holt; that he was seized of undivided
third part Of the real estate described in the bill,
which partnership property that the same
cannot be partitioned in manner satisfactory to
the parties interested; and joining in the plaintiffs
petition for order of sale, that the proceeds may
be divided.
The respondents admit the necessity Of the sale,
and join in the prayer for the order; but still it
seems necessary to consider the question, whether
or not the plaintiff, executor, is the proper par
ty to ask for the sanction of the Court, and to be
authorized to join in executing the requisite con-
veyances.
The question as to how far real estate, purchas-
ed with partnership funds and held and used as
partnership property, is upon that account to be
regarded and treated as personal property, is
novel one In this country, and | have examined
the subject with good deal of care, for it is
question of considerable Importance even under our
law of Inheritance, although not so much 50 as it
is under that of England.
This is one of those subjects upon which varie-
! ty of judicial opinion has been enuuciated at diff
ierent times, both in the English and American
courts. So great has been the diversity of opinion
that Mr.. Justice Story, when he wrote his learned
treatise on the Law of Partnership, said the sub
ject must be considered las open to many Distress
ing doubts" (Story on Partnership, See. 93)
Mr.. Bisset. respectable English text-writer, in
stating his view of the doctrine to be deduced from
the adjudged cases, gives the first proposition as
| follows:
THAT in the absence of specific agreement to
the contrary, real estate purchased with partner
ship funds for partnership purposes. is converted
| out and out into personal estate, and therefore
goes the personal representative, and not to the
heir of deceased partner
With all due regard for so respectable an au-
thority, feel constrained to say, that in my Opin-
ion the rule here laid down is not sustained by
the weight of authority, either English or Ameri-
can; and if such has been held to be the law in
some courts. it does not seem to me to be based
upon satisfactory reasons.
The difficulty which surrounds this subject is at
tribuable in great measure, | think, to the ef-
forts of the English Equity courts to overcome the
peculiarites of the English common law affecting
real property to subject real estate purchased
with partnership funds, for partnership purposes,
to partnership liabilities IN like manner with the
personal estate of partnership. In efecting this
object, some judges have gone the extreme length
of holding, that in equity real estate purchased
and held is not only to be regarded as personal
property for purposes connected with the partner
ship, but as being converted out and out into per-
sonalty and to be regarded and dealt with for all
purposes whatsoever.
Those who, with Mr. Bisset. regard the extreme
doctrine as being clearly established, appear to me
to attach too much weight to some decisions given
by the learned Chancellor, Lord EldOn, and follow
ed by several other judges. In the case of Ripley
IS. Waterworth e Vesey, jr., 425), his lordship
held that real estate conveyed for the purposes of
Il partnership trade converted out and out in
to personal estate but it must be observed that IN
that case there a written agreement between
the parties and the decision based upon the
construction of that agreement In the case OF
Townsend rs. Devaynes, his lOrdship Is reported
to have decided that real estate purchased for part
nersbip purposes took the character OF personal
estate, so as to belong at the death of partner,
to his personal representatives,, but am unable to
, ! ascertain whether not there was any agreement
in that case Mr. jacobs. in his edition OF Roper
Husband and Wife, accounts for the decision on
the supposition that there was an agree 'ment; and
Sir L. Shadwell V. c., in Randall Us. Randall said
the case of Townsend Us. Devaynes decided only
that where partners in u trade purchase land Tor
the purposes of the trade, it shall be considered
as personal. In Stuart rs. The Marquis of Butte
QI Vesey IT,, 665) Lord Eldon said, that in cases
where persons engaged in partnership have bought
freehold houses the difficulty of distinguishing and
arranging property Of different natures, partly per-
sonaI and partly real has never been held sufficient
to exclude the heir ercept by the effect of the con-
tract or the oIH of the deceased partner In Sclkrg
rs. Davies and Salt e Dow. 242) his lordship did
declare his opinion be, that all property invOy-
ed in partnership concern ought TO be considered
as personal but when adverting to this same
point in the later case of Crawsay Us. Maule, he
evidently considered it a question by no means
settled whether freehold estate purchased by a
partnership. and in some an article OF stock
in trade, would, the death of partner, pass as
real estate or as stock personal estate IN en-
ioyment, though freehold in nature and quality
On the whole. therefore, do not consider the
opinion of Lord E!don having finally settled
down in favor of the application OF the principle TO
the extent that is claimed.
In the case of Phillips Phillips, (Myl & X.
649), Sir John Leach, NJ. r., upon the authority
, of Townsend Us. Devaynes, and the opinion ex'
pressed at different times by Lord Edon, and from
considerations of general convenience, held that
freehold and copyhold public houses, purchased
by two brewers with the partnership capital, and
conveyed and surrendered to them and their heir;
for the purposes of the partnership trade were tt
be considered personal estate generally, and moi
merely for the payment of the partnership debts
I,.a.I the