Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-02-15
COURT DECISIONS.
DIGESTED BY w. q. kaARTiM.
tExolusIvely for virglnian-Pllot)
Notes Of Cases Recently Decided,
Which are Of Interest to
Our People.
coNRAD's ADMIR-. v. FULLER

CoNRAD'S ADMIR-. v. FULLER.
supreme Court of Appeals of Virginia.
January is, 1900.
ORDINARILY ONLY THE PER
SONAL REPRESENTATIVE OF A
DECEASED PARTNER CAN SUE
THE SURVIVING PARTNER FOR
AN ACCOUNT, BUT UNDER SPE-
GAL CIRCUMSTANCES A DIS
TRIBUTEE, LEGATEE OR CRED
IToR MAY SUE HIM.
A SUIT TO SETTLE SUCH ESTATE
AND PARTITION DECEDENTS
LAND MAY BE CONSIDERED A
CREDITORS SUIT.
IN SUCH SUIT A TRUSTEE IN A
DEED AND THE CREDITOR Sc
CURED ARE NECESSARY PAR
TIES; CREDITORS MAY PROVE
THEIR DEBTS AND THE COURT
SELL THE LAND UPON PRIVATE
OFFERS.
The points decided appear from the
opinion of the court.
The court says:
Under ordinary circumstances. the
personal representative OF a deceased
partner Is the only person who has the
right to sue the surviving partner for
an ACCOUNT of the partnership affairs;
put. under special circumstances, dis
trlbutee, legatee or creditor of the de-
ccdent may file bill against the per-
sonal representative of the decedent
and the surviving partner.
Mr.. Justice Lndley, in his work on
Partnership, side page 1868, In discuss
Ing this subject
ing the general rule that separate
creditors, legatees and next OF kin of
a deceased partner have no locus
standi against his surviving partner.
the rule is by no means without OK
ceptions. The special circumstances
Wnich nave been held sufficient are
collusion between the executors and
the surviving partners; refusal by the
former to compel the latter TO come
10 an account; dealings which NAV
nave precluded the executors from
themselves obtaining any account; the
TACT that the executors are themselves
partners and liable therefor to account.
10 themselves as executors; and gem
orally where the relation between the
executors and the surviving partners is
sucn as to present n substantial i'm
pediment to the prosecution by the ex-
ecutors OF the rights of the persons in
terested in the estate of the deceased
against the surviving partners; then,
IL mas been said, an action may be
instituted by those persons against the
executors and the surviving partners"
InlS statement seems to be sustained
by the authorities and is in accord with
the general rule that a distributee. leg
atee or creditor cannot sue the debtor
. OF the decedent along with his per-
sonal representative, except under spe-
clal circumstances.
The court is further of opinion that
1t was error to decree a. sale of de-
cedonts real estate before the trustee
IN the deed of trust had been made n
party to the suit. He was a neces-
pnry party. and the court ought not
to have entered the decree for sale nm
I'll he was brought before II. Whether
or not Coursen. the creditor whose debt
was secured by the deed of trust, and
VINO was also necessary party, was
before the court is not altogether
clear.
After decree for n general account
In creditors suit (and this may be
so considercd) all the other creditors
may come In and prove their debts.
The practice in some parts of the
state. Following the English rule, Is to
require the creditor coming in under n
decree 10 prove claim against the
estate of n decedent to accompany Il
with an affidavit that the debt remains
uue. oucl fllluaVlt Is not intended as
evidence before the commissioner in
proof OF the debt, and must not be so
considered. It puts the claimant unon
his conscience as to the bona fides Of
his claim, and thus frequently pro-
tects the decedent's estate from nav
ing debts which have already been
paid, and that practice has this fur
ther advantage, that 1t places in the
record the evidence that the creditor.
and not some unauthorized person. laid
the claim before the commissioner to
he reported, and prevents such n ques-
ton as the one now under considera-
ton from arising.
The court Is further of opinion that
the provision In the decree OF sale
which authorized the special commits
sioners ito endeavor to procure offers
Tor the property privately. and If they
succeed in obtaining any such offers
which they shall deem or be advised
should be reported to the court, they
shall report such offers in vacation,
when the court. II 1t approves them,
viii authorize the acceptance of such
bids and direct how they shall be car
ried out" was not to the prejudice of
the appellants. but was one of the
means which the court, in the exer-
else of Its discretion. had the right to
adopt in order to obtain the best price
Tor the property to be sold. Re