
    John M. Brooks, Administrator v. Sarah Brooks and others.
    1. Statement. Brooks & Suggs were partners. Suggs died first, and then Brooks. The insolvency of both Brooks’s estate and the partnership was suggested by Brooks’s administrator. A partnership creditor filed his petition seasonably, but only against Brooks’s individual estate. After the bar of the statute of limitations of two years had been formed as to both Suggs’s and Brooks’s estates, the creditor sought to amend his petition so as to prefer his claim against the partnership. This was resisted by Suggs’s administrator, as an attempt to overreach the statute of limitations of two years, as to Suggs’s estate, by an amendment affecting that estate. The decree of the Chancellor allowing the amendment was affirmed.
    2. Partnership. Surviving partner. The partnership creditor being in time to recover against the estate of the surviving partner, in which event that estate would be entitled to proper reimbursement from the partnership fund, it was therefore proper to reach the same result, without circuity, by allowing the creditor to resort to the partnership fund directly.
    
      3. Same. Administrator of surviving, partner. The administrator of the surviving partner represents the partnership assets, as well as the individual estate of his intestate.
    FROM SHELBY.
    From the First Chancery Court of Shelby County, October Term, 187-2. R. J. Morgan, Ch.
    In this case, the counsel agreed upon a record for the supreme court, from which is quoted the following statement of facts, being the " agreed case ” referred to in the opinion of the court:
    “ Elijah Brooks and John C. Suggs were partners under the style of Brooks & Suggs.
    "Elijah Brooks, the surviving partner, died in June,. 1867. The insolvency of his estate, and. of the partnership estate, was suggested.
    "John M. Brooks qualified in 1869, as the administrator of Elijah Brooks, and filed his bill in this ease in May, 1868, bringing the estate of Elijah Brooks, and the partnership estate of Brooks & Suggs, into this court for administration, and making Sarah Brooks, Robert Brooks, Laban Suggs, administrator of John C. Suggs, and others, defendants.
    "The- individual estate of Elijah Brooks, and the-partnership estate of Brooks & Suggs, are now in this court, in this proceeding, and no distribution has yet Been made of the fund of either estate.
    “On May 13, 1869, less than two years from the qualification of the administrator, R. H. Brooks, a resident of Shelby County, filed his petition and claim in this suit, against the estate of Elijah Brooks, said ■claim consisting of sundry items, to the amount of about $1,900, and among the items was one for $538.60 paid on a note to one Laird. The entire claim was allowed by the clerk, in bis report made December 16, 1869, as a debt against the estate of Elijah Brooks, but the report in that particular has not been confirmed. This item was included among the other items of the party’s account against the estate of Elijah Brooks; but in fact the money was paid on a note made by B. H. Brooks for the accommodation of the firm of Brooks & Suggs, and was a debt due to B. H. Brooks from said firm, and not from Elijah Brooks individually.
    “On Dec. 23, 1872, B. H. Brooks applied for leave to amend his petition of May 13, 1869, so as to have the item of $538.60, in his claim of that date, paid out of the partnership estate of Brooks & Suggs, instead of the estate of Elijah Brooks individually. This application was resisted by the administrator of John C. Suggs, on the ground that the item being in the petition filed May 13, 1869, against the estate of Elijah Brooks individually, the motion to amend, so as to make it a claim against the estate -of Brooks & Suggs, was an attempt to prefer a new claim barred by the statute of limitations of two years.”
    The Chancellor’s decree was as follows:
    “That the petition and claim of May 13, 1869, embracing this item of $538.60, having been originally filed in time, and neither fund having been distributed, nor the report of the Clerk and Master, of Dec. 16, 1869, allowing this item as a debt against the estate of Elijah Brooks, confirmed, it is competent for the petitioner to amend his petition of May 13, 1869, so as to ask that this item of his claim be paid out of the partnership claim of Brooks & Suggs, instead of the estate of Elijah Brooks, and that such amendment, made at this time, upon the state of facts in the record, will relate back to the date of the filing of the petition, May 13, 1869, so as to save it from the bar of the statute; and it is decreed that petitioner have leave to amend accordingly; but such ■amendment shall not cut off any defense as to that item which either administrator might have made at the date of the filing in May, 1869; nor any defense which they now have, except that of the statute of limitations of two years, which statute, being pleaded by Laban Suggs, administrator, is overruled by the ■court.”
    Humes &■ PostoN and Geo. W. Westchester, for plaintiff.
    Merriweather & Scales, for defendants.
   BurtoN, J.,

delivered the opinion of the court.

The facts of this case being so clearly and succinctly stated in the agreed case, need not be repeated here.

We agree with the Chancellor that R. H. Brooks should have been allowed to prove his partnership •claim of $538.60 against the partnership assets of Brooks & Suggs; but we do not approve of the rea-soiling on which his Honor’s decree seems to have been founded.

On the decease of one partner, the survivor stands chargeable with the whole of the partnership debts, and therefore partners are so far deemed joint tenants, as it were, of the partnership effects, as to enable the survivor to take them by survivorship, for the purpose of holding and administering them until the debts are paid: and not until this is done, is he required to account to the personal representative of the deceased partner, for the deceased’s part of the partnership effects.

Elijah Brooks, the surviving partner in this case, having died before the partnership was wound up, it should seem that John M. Brooks, his administrator, succeeded to the interest which the former had in the partnership effects, and had the right to administer them. And if this be true, then the objection made to R. H. Brooks’s proving his claim against the partnership assets was extremely technical.

R. H. Brooks proved against the administrator of the surviving partner, his whole claim, including the demand against the partnership, within the two years allowed by law; and if the title to the partnership assets vested in the administrator of the surviving partner, then the administrator was bound to answer the demand out of the partnership assets, as well as out of .the individual assets of his intestate, Elijah Brooks.

We have not been able to find a direct authority to the effect that the administrator of the surviving partner represents the partnership assets that, were in the hands of his intestate, unsettled and undisposed of; but whether this be so or not, there is another reason, we think, why Suggs’s administrator can not complain of the Chancellor’s decree.

The partnership creditor saw fit, indeed, to prove his claim only against Elijah Brooks’s individual estate; and having failed to proceed against Suggs’s estate within two years and six months from the qualification of the administrator, it might seem that he could not afterward amend his petition against Brooks’s estate into one against the partnership, since this step would involve Suggs’s estate. But the creditor might recover against Brooks’s administrator, and then he might resort to the partnership effects for proper reimbursement, and this would equally affect Suggs’s estate. 'Why confine the creditor to Brooks’s administrator, and impel him upon the partnership fund, when the same result might be accomplished, without circuity, by allowing the creditor himself to resort to the partnership fund in the first instance?

But aside from this, we think that the administrator of the surviving partner represented the partnership assets, and that, without any amendment to the petition, it would have been the Chancellor’s duty, by way of adjusting the accounts between the parties, to direct payment of the partnership debt out of the partnership assets.

Without further discussion, we affirm the judgment.  