The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1918-03-13
Supreme Court
Decisions
From Cas- County.


W.. c. Macfadden, petitioner and
respondents.
syllabus:
!. Where there existed a partner
ship between two parties which was
dissolved by mutual consent, one of
the partners continuing and succeed
ing TO the business OF the firm includ-
ing the firm name, and the partner
who continues the business before the
completed, dies, and one who was not
heretofore connected with the part
nership was appointed administrator
OF the estate OF the deceased partner,
ana after his appointment and quail
ncation as administrator, and his en-
try upon the discharge OF his duties
as such administrator, forms a cor
poration, the incOrporators consisting
OF himself AMI two others, one being
the wife of the deceased, for the pur-
pose Of continuing the business of the
deceased, and the following entry is
made on the corporate books: Paid
for good will Of company Is shares
of stock to 2. NJ Jenkins, Is shares to
Mactadden. and Is shares to B. Simon
ttsch," each share being for 800, the
total Of such shares being $4,000, IL is
stances and facts OF this case that
the corporation took over the business
Of the deceased, and the notation
made upon the books OF the company
with reference to the good will is an
agreement to pay $4,000 for the good
will OF such business
2. Where partnership existed and
was dissolved by mutual consent, ana
one Of the partners continues the bus
mess and succeeds thereto, and the
name OF the partnership, and the con-
tinutng partner undertakes to liuui-
date the partnership and is doing so,
but has not completed such Hquida-
tion at the time OF his death, the
equitable title to all property both
real and personal vests in the surviv-
ing partner in trust, and in trust
and the heirs or representatives OF
the deceased are entitled to any bal
ance remaining after the partnership
liabilities have been satisfied.
3. Where a partnership existed,
which has been dissolved BY mutual
consent of the partners, and one OF
the partners continues the business
and succeeds to the name and becomes
gagged in the continuance OF the bust
ness and LIQUIDATION OF the partner
ship at the time of his death, and one,
q stranger to the partnership, is ap-
pointed administrator of the estate
or the deceased and duly qualities and
enters upon his duties, such admins
traitor Immediately upon his ouRlihca-
ton assumes q trust In relation to all
the property Of the deceased, and all
such property OF the deceased In the
hands of the administrators Is inn
pressed by a trust which the admin
istrator is in law bound to faithfully
execute, and where such administrator
after his qualification organizes a cor
poration OF which he IL president. to
which is sold the property OF the de-
ceased by the administrator through
the probate court, and such corpora
ton comes into possession and con-
and sells and disp0ses of the same, ii
is held that under these facts and
circumstances there is a direct con
hict between. the trust RELATIONS Of
the deceased, and his self interest
represented by the corporation or
which he was president In such case
IL is apparent that II would be to the
interest Of the administrator as a part
owner OF the stock OF the corporation
to purchase the property from the eH-
tate as cheaply as IL could be pur-|
chased, and as administrator under
these circumstances IL would be TO
his personal interest and Individual
gain to sell the land and property OF
the estate to the corporation ait as low
q price as he could.
4. Where, as in this case, the ad-
OF the estate OF q deceased
person sells and disposes of the trust
property to q corporation Of which he
is the president or OF which he IL a
MEMBER. and permits such corpora
ton to receive and take possession Of
the personal property and control and
dispose OF it, II is held that the pur-
chase Of the property by the corpora
tipn Is in such case q purchase by the
administrator, and that the value OF
such property, and any gain or profit
made by the corporation, shall accrue,
not to the corporation. but to the
cestui que trust or the legal repre-
Of the deceased, and the
is accountable for all
The value OF the property OF the intes-
tate which came into his hands and
under his control and is held ac-
therefor
5. Where a trustee violates hts
trust relations and WrOnEfully and /
converts the trust prop
arty either directly himself or by and !
through other agencies, such as cor
oorations or other agencies formed. /
De which the administrator is a mem |
Der, the administrator is liable In /
equitable conversion for the value OF /
IN such property 80 converted, and /
he profits and gains thereof, if any.
8. A corporation may be considered /
/ legal entity when used for the ae-
of a legal purpose. Cor
however, cannot be used as /
] icover under which wrongs may be i
committed and fraud perpetrated. In Il
such case the court Will look through 4