Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1901-06-11
AUERBACH WINS
over WILSON.
Supreme Court Decides for the
Former in Noted Estate Sale,
THE SURVIVING PARTNER
his Privilege 10 object TO Proceed
ings which would Prejudice Ills
Interests aud work Hardship.

Five opinions were handed down by
the Supreme court this morning,
The trst OF these is an affirmation
Of the decision OF the lower court In
the matter OF the estate OF Frederick
h. AuerDach, deceased, H. g. wilson,
appellant, VS. Theodore and lsadore
Meyer, executors, ana samuel ii. Auer-
bach. The opinion Is wriuen by jus
time Bartch, chief justice Miner and
Justice BasKin concuiTlnt
Inc appeal was FROM all order IN pro.
bate, refusing 70 conhrm a sale OF GER
tain PERSONA property the accidents
half interest, which had Oeen made BY
the executors Of tie estate of Fred rick
II, AuerbaCh, pursuant 10 an order OF
the court X. q. Wilson mad Did higher
than Samuel H. AuerbaCh the sur
NlVing partner The court ordered that
the sale 10 Wilson be declared nun and
void owing to the fact that IL had no
jurisdiction in the premises in ordering
the sale.
The Supreme court holds that there is
right of appeal, not only from the final
DEGREES but also from the final orders
of court In the administration Of dece-
dent estates
With regard 20 the argument that
Wilson was not party to the suit, and
therefore had no right OF appeal. the
court holds that In accordance with the
notice Of sale the appellant became the
highest bidder and was thereupon rec
ognized as the purchaser Of the half in
terest Of the decedent, and although the
court declared the sale void the appel
liant became at least a quasi party to
the proceedings, and 1t would seem II
the court erred in making the order he
was in equity entitled to have It re-
viewed on appeal by his bid" says
the Supreme court, "and payment of
the 10000 certified check required as a
deposit he subjected himself quoad hoe
to the Jurisdiction of the court and
could, provided the court had turisdic-
ton TO order tie sale, have been re-
qulred TO perform his contract speclfi-
cally so as TO complete the purchase.
He was therefore entitled to pursue his
remedy by appeal"
As 10 whether the court erred In re-
fusing 10 confirm the sale the appellate
court holds that upon application Of the
executor the court may order the sur
viying partner to give bond or render
an account whenever il appears neces-
sary, and IN case OF neglect or refusal
may. after notice, compel Il by attach
ment. aud the executor may maintain
against him any action which the de-
cedent could have maintained. The le-
gal title TO all the Joint personal prop
erty upon the death Of one OF the part
ners the court considers becomes vested
In the survivor as trustee and Il Is his
duty 10 dispose OF II IN good faith for
the best interests Of all concerned. A
court, even upon the application Of an
executor or administrator, cannot order
a summary sale of such property and
deprive the surviving partner Of his
possession and control Of the Joint prop
erty.
The Supreme court maintlins that the
had no authority 10 In
termeddle az all with the partnership
affairs. except 10 call on the surviving
partner 10 close uD the partnership ar
fairs and account for the surplus be-
longing 90 the estate His authority on
~ extended 10 settling up and distrib- /
uting the remainder under probate d. |
Ioction 20 the interested parties.
The court doese not understand that |
the executors or legatees were dlssatls- |
fed with the surviving partners man /
o cement OF the business who has there /
fore a right 10 object TO proceedings /
which would prejudice his interests and /
work p hardship upon him.
Mr.. Samuel II Auefbach was repre- /
seuted by Marshall, Roye & Hemp /
stead. and Judge Ogden Hlles while |
Dey & Street were on the other side OF |
the case.
BUDD WINS.
In the case Of George II. Budd aglnst
the salt Lake City railroad company.
the lower court is again affirmed The
opinion Is again written BY Justice
Bartch. the other justices concurrlng.
This was an action for damages. the
fury awarding the plaintiff 20 800 for In
iurics sustained. from which decision
the city railway appealed.
PADDOCK LOSES.
The case OF BENJAMIN r. Hadock
against the city was reversed. Justice
Baskln dissenting. The opinion Is again
written by Justice Bartch.
In this case Haddock was awarded