
    [Filed April 21, 1887.]
    RACHEL PALICIO, Appellant, v. JOHN BIGNE, Respondent.
    Execütob of Pabtnebshe? Estate.' — where it was provided hy a will that the executor therein named should not he required to give bonds, and the executor, who was a partner of tho deceased, administered upon the general estate of deceased, and also caused himself to he appointed administrator of the partnership estate, and retained the administration thereof after he had closed up the general executorship; held, (1) That he should have closed up the partnership estate first. (2) That he should be required to give bonds as executor of the partnership-estate, notwithstanding the provision of the will.
    Appeal from Multnomah County.
    
      M. G. Mwnly, and Watson, Hume & Watson, for Appellant.
    Bigne could not act as administrator of the partnership estate without giving an undertaking.
    The decedent could not dispense with this security, which is for the benefit of creditors of his estate and surviving partners. (Cook v. Lewis, 36 Me. 340; Buffum v. Buffum, 49 Me. 100; Hill v. Treat, 67 Me. 501; Putnam v. Parker, 55 Me. 235; Bredon v. Muí. Sav. Inst. 28 Mo. 181; Grow v. Weidner, 36 Mo. 412; Collier v. Cairns, 6 Mo. App. 188; Adams v. Marstler, 70 Ind. 381'; Nelson v. Haynes, 66 Ill. 487; Scott v. Buffum, 52 N. II. 345.)
    The extension of the probate jurisdiction to settlement of partnership matters is, under the statute, original and exclusive, and did not exist at common law. (Story on Partnership, 344; 3 Bedfield on Wills, 136; Code, § 869.)
    
      Strong & Strong, for Bespondent.
    There was no partnership property in the sense of the words used in the probate act. Under the Code, section 1056, page 3181, no bonds can be required of Bigne, the testator having declared that no bonds shall be required.
   Strahan, J.

Pierre Manciet died in Portland, Oregon, on the nineteenth day of April, 1882. Before his death he made and published his last will in clue form, by the terms of which it is provided: —

“ 1st. It is my will that all my debts be paid as soon as may be convenient to 'my executor after my decease.
“ 2d. I do devise and bequeath to my executrix and executor hereinafter named, and to the survivor of them, or either of them, all the residue and remainder of my estate, real, personal, and mixed, of every name and nature, and wherever situate, to have and to hold the same in trust for the uses and purposes hereinafter declared, that is to say, to the sole use and benefit of my beloved wife, Petra Cortes, during her natural life, giving to her the rents and profits of the same for her use, and the interest and income from all sources, and so much of the principal of the estate as may be required to enable her to comfortably provide for her own support, and for the maintenance, support, and education of her children hereinafter named, so long as they are minors, or may be dependent upon her; and it is my wish that this support shall be furnished her, from time to time, as her necessities may require.
“ At the death of my said wife, all the remainder of my said estate, at her decease, after satisfying all her just debts, to be converted into money by my said executor, or his substitute, to be appointed by the proper court, in case of his death or removal, and divided equally, share and share alike, between the following named persons, to wit: Frank Palicio, son of my wife by a former marriage, and Bachel Palicio, daughter of my said wife by said former marriage, and our children, Charles, John, Linda, Peter, "Vincent, Madeline, Pauline, and Louisa.
“3d. I hereby fully empower my said executor and executrix, or either of them, if only one is acting, to have and possess the full control and management of my estate, to sell, convey, or exchange my real property, or any part of the same, and therein invest the proceeds, and to convert real estate into money, or money into rent-paying real property, bonds, mortgages, or other securities, whenever and as often as they shall deem most for the advantage of my said estate.
“Item. I make this will in the full confidence that my said executor and executrix, having themselves full knowledge of all the circumstances of the long copartnership between my executor and myself, will be able to settle amicably and in a liberal manner all matters relating to said copartnership.
“I hereby direct that my said executor and executrix be not required to give bonds or security for the discharge of their duties under this will, and request that no bonds be required of them.
“I hereby nominate and appoint my said wife, Petra-Cortes, executrix, and my life-long friend, John Bigne, executor of this, my last will and testament.”

On the tenth day of May, 1881, said will was duly proven and admitted to probate in said County Court of the State of Oregon for the county of Multnomah, and letters testamentary were, on the same day, issued by said court to said John Bigne and Petra Cortes Manciet, the executor and executrix named in said will, who immediately qualified and entered upon the duties of said trust. That on the nineteenth day of April, 1882, said Petra Cortes Manciet died, and thereafter the said John Bigne continued to act as the sole executor of said will. On the twenty-third day of March, 1882, said executor and executrix filed an inventory of said estate, and on the ninth day of September, 1885, he filed his final report of his actings and doings as executor of the estate of Pierre Manciet, deceased.” On the fourth day of November said County Court made an order allowing said account, except as to the executor’s commission, from which the court deducted $612.50. On the twenty-third day of July, 1886, Rachel Palicio filed in said County Court a petition for the removal of John Bigne from said trust, or for an order requiring him to give security as administrator of the partnership estate of Manciet and Bigne. Various and sundry irregularities are charged in said petition against said John Bigne in the conducting and management of said trust; but in the present state of this record we do not think it necessary to consider them. On the hearing of the petition, said County Court made an order requiring said John Bigne to file with the clerk of the court, within ten days after notice of such order, his undertaking as administrator of the partnership estate of Manciet and Bigne, in the sum of $135,450, with sureties to be approved by the judge of said court, conditioned according to law. The court also, at the same time, made an order perpetually enjoining the said John Bigne from selling, or in any manner disposing of any of the property of said estate, without the order and license of said court first had and obtained therefor. From these orders John Bigne appealed to the Circuit Court. On hearing of said appeal, the Circuit Court reversed the order of the County Court requiring him to give an undertaking as administrator of the partnership estate of Manciet and Bigne, and also gave a decree against the appellant for costs, from which decree this appeal is taken.

Power of County Court to require v/ndertaking. The power of the County Court to require an undertaking vf Bigne as administrator of the partnership of Manciet and Bigne depends upon tho construction to be given section 1056 of the Civil Code, and some other sections thereof to be presently referred to. That section reads thus:—

“No executor or administrator is authorized to act as such until he shall file with the clerk of the County Court having jurisdiction of the estate, an undertaking in a sum not less than double the probable value of the estate, with one or more sufficient sureties to be approved by the county judge, to be void upon the condition that such executor or administrator shall faithfully perform the duties of his trust according to law; provided, that when, by the terms of his will, a testator shall expressly declare that no bonds shall be required of his executors, such executor may act, upon taking an oath to faithfully fulfill his trust, without filing the undertaking in this section mentioned.”

It was conceded upon the argument, that by the terms of Pierre Manciet’s will his executors were exempted from giving bond as such by the terms of the above provisio; and the question presented for our determination is, does it exempt him from giving an undertaking as administrator of the partnership of Manciet and Bigne? And it seems to me this depends altogether on the other sections of the Code applicable to that subjeet.. Section 1069 of the Civil Code provides: “The executor or administrator of a deceased person wbo was a member of a copartnership shall include in the inventory of such person’s estate, in a separate schedule, the whole of the property of such partnership, and the appraisers shall estimate the value thereof, and also the value of such person’s individual interest in such partnership prop-perty, after the payment or satisfaction of the debts and liabilities of the partnership.” Section 1070 provides: “After the inventory is taken the partnership property shall be in the custody and control of the executor or administrator for the purposes of administration, unless the surviving partner shall, within five days from the filing of the inventory, or such further time as the court or judge may allow, apply for the administration thereof, and give the undertaking therefor as hereinafter prescribed.” Section 1073 of the Civil Code provides: “In case the surviving partner is not appointed administrator of the partnership, the administration thereof devolves upon the executor or general administrator; but before entering upon the duties of such administration he shall give an additional undertaking in .double the value of the partnership property.”

In the case before us John Bigne is the surviving executor of 'Pien’e Manciet’s will, and he is also the surviving partner of the firm .of Manciet and Bigne; but he never saw proper to qualify as administrator of the partnership in his capacity as such surviving partner. Therefore, whatever rights and authority he dias.in that behalf are such as are devolved upon him by virtue ■of his.,executorship of Manciet’s will. Section 1073, swprci, certainly does require the executor to give an additional undertaking'before entering upon the duties of such administration; unless xthe provisio to section 1056 has repealed, by implication, so much ,of.section 1073 as provides for an additional undertaking in cases .of partnership, where the executor is relieved by will from giving the undertaking, it is plain the terms of section 1073 must be .Complied with. Repeals by implication are never favored by the ..courts, and are allowed only in cases where the conflict between .the old and new statute is irreconcilable qnd in such direct opposition that both cannot stand. This is not true of these two provisions. Here there is no conflict. Both provisions can have effect by applying them to the precise cases each was designed to meet. It requires a strained and unreasonable construction to make the conflict even colorable. In addition to this the provisio to section 1056 ought not to be enlarged or extended. It tends to render trusts of this nature uncertain and insecure; or, at least, it takes away one of the safeguards which is deemed proper in such eases in a very large majority of the States. It is true the legislature may allow the testator to dispense with it in the first instance, and so far as it has plainly done so it must be enforced; but it is not one of those kinds of statutes the terms of which ought to be extended to any cases not plainly within its terms.-

Partnership estate should be settled first. This estate seems to have fallen into a condition of serious confusion. One grave irregularity is in the attempt of the executor to settle the estate of Pierre Manciet first and the partnership estate afterwards. This was irregular. The partnership estate must be first settled and next the individual estate. This is plainly to be inferred from section 1071 of the Civil Code. By that section the duties of the administrator of the partnership extend to the settlement of the partnership business generally, and the payment or transfer of the interest of the deceased in the partnership property remaining after the payment or satisfaction of the debts or liabilities of the partnership to the exeeutor or general administrator, within six months from the date of his appointment, or such further time as the court or judge may allow. And this would be true if the statute were silent on the subject. Prom the nature of the case the executor or administrator of the individual estate could make no final settlement of his trust until all the effects and interest of the testator or intestate in the partnership had been ascertained, settled, and paid or delivered to him. Only in this way could the property of the deceased invested in the partnership business be made available for the payment of the individual debts of the deceased partner, or for distribution. So far as appears, the executor has been making an honest effort to settle this estate, but the vagueness of the statute rendered his powers and duties somewhat uncertain. It is not clear that our statute has fully provided for such cases, or that it has given the County Courts powers entirely adequate to all of the emergencies of such cases; and this applies more particularly to the-ascertainment and settlement of the state of the accounts between the partners. This defect was referred to in Burnside v. Savier, 6 Or. 154, and in Mann v. Flanagan, 9 Or. 425. At a certain stage of the proceedings in the County Court the power of a court of equity was invoked, which met the approval of this court.

The views expressed require a reversal of the decree of the Circuit Court, and the affirmance of the order of the County Court appealed from.  