
    
      Executors of Philyer Loop vs.Adminstratrix of Joseph B. Loop.
    
    That infancy will not protect an executor in a fraudulent execution of his trust.
    This was an appeal taken from the decree of the "Court of Probate, relative to the accounts existing between the two estates. The accounts had been sent to an auditor who made a detailed report to this court, to which exceptions were taken. A great portion of the report and papers in the cause have no direct relation to any principle now to be decided; but only to various items of the accounts, some of which fall within those principles, and others are at rest without any exception to the auditor’s decision. The history of the transactions of the parties, so far as need now be mentioned, is, That Philyer Loop was in trade, and, about a year before his death, took into partnership his son Joseph B. Loop, who was a minor, about eighteen or nineteen years of age. After this partnership had existed about a year, Philyer made his will, and soon after died. In his will he bequeathed as follows, to wit: “ The other two thirds of my property I give and bequeath to my children above mentioned, equally forever, with this exception, that is, Joseph B. Loop is to have one half of the profits in trade while in company with me for about a year past, the other half of the profits, and the whole stock is to be considered my property.” He made the said Joseph B. .Loop,and Lewis Sowles and Wrn. L. Sowles, his executors, who, after his death, proved the will, Sic. Joseph B. Loop carried on the trade in the store and acted as executor till some time after he was of age, collecting debts and paying out money in satisfaction of debts, in whole and in part. After this he died, and the defendant took administration of his estate. The questions now principally litigated were, whether Joseph B.'Loop is entitled to the whole profits of the trade during the partnership, or only half of the same, hy virtue of the above clause in said will ? Also whether the infancy of said Joseph B. Loop shall screen him from accounting for the stock in trade, and any share of the profits belonging to the said Philyer Loop at' his decease ?
    1 The counsel for the defendant contended, That the decision of the auditor overruling the defence of infancy, was clearly incorrect. The stock in trade was the joint property of the two partners, and the infancy of J. B. Loop discharged him from his liability for the partnership debts, and his own debt to fire firm,, so far as the same was not for necessaries. The auditor, however^ has subjected the estate of J. B. Loop to the full extent of all these claims,¶ without any sufficient confirmation of his liability by J. B. Loop, after arriving at full age. A part payment of a debt contracted in infancy is not a confirmation without an express promise to pay the balance : much less is the mere settling of partnership accounts to a trifling amount, as in this case; That the report ought to have shown wliat particular acts were done by J. B. Loop, after he arrived at full age, and not show, generally, that he settled some accounts and made some payments, &c. Otherwise, the court must remain in doubt whether such acts were sufficient to amount to a confirmation and a waiver of the privilege of infancy. The defendant insists that the estate of J. B. Loop is made to answer for certain claims twice — once as surviving partner, and once as executor of P. Loop. The counsel also contended, that the estate of J. B. Loop is wrongfully charged with one half of the profits of the partnership — for that by the will of P. Loop and the character of a partner, J. B. Loop was entitled to the whole of said profits.
    The counsel for the plaintiffs contended, 1st That from the will it is evident the testator intended that J. B. Loop should have but half of the profits of the trade of the firm of P Loop & Son. And when this language of the testator is taken in connexion with the facts, that J. B. Loop was a minor during the existence of the partnership, that he put no capital into the stock of the firm, and that there were no written articles of partnership, it appears to be an irresistable inference that the testator would be understood as making a simple declaration of the rights of himself and partner. 1 This construction is warranted by sound principles of law : for the court will resort to extrinsic evidence to explain the interest of the testator. — 2 Roberts on Wills 16, 23. — 6 Term R. 676, Thomas vs. Thomas. — 1 Sw. Big. 456. — 2 Sw. Big. 97. But if by sound construction of the will and the nature of the partnership, J. B. Loop is to recieve all the profits of the firm of P. Loop 4r son, yet the defendant cannot in this action retain any thing more than the share which belonged to J. B. Loop, as surviving partner. If the administratrix of J. B. Loop should be permitted to retain tire effects in her hands in satisfaction of a legacy given, to J- B. Loop, it might de« feat the rights of the creditors and other legatees.
    2. Infancy cannot be pleaded in bar of the account before the auditor. 'But if the defendant could avail herself of that plea, it should have been pleaded in bar of the action before judgment to account.- — 3 Wilson 73, Godfrey vs. Saunders.* — Cro.Eliz. 830, —1 Bacon Mr. 21.— Cro. Car. 116. — Strange 68.- — Cowp. 728. — 1 Com. Big. 123-26. — 1 Sw. Big. 726. But if it can be pleaded before the auditor, it is no bar to an action of account against the defendant, as administratrix on the estate of the executor, if it appear that the Executor was 17 years of age when he took upon himself the execution of the trust. — 6 Co. 24, Rus-' Sett’s case. — Bing, oninfancy, 78. The administratrix of J. B. Loop is estopped from pleading that he was an infant m bar of the account against him as executor. This subject has been adjudicated upon by the Judge of Probate, in granting letters testamentary to J. B. Loop; and this adjudication is final and conclusive on all parties, unless appealed from. — Tot. on Ex. 77.- — 3 Term R. 125, Allen vs. Bundas. — l Salk. 38, Blackborough vs. Bavisi —2 Bae. M. 398. J. B. Loop, after he became of age, ratified and confirmed all his acts done as executor while a minor. — Bing, oninfancy,67,71,113, — Powell on Contracts, 55. Aninfantcan be a partner in a mercantile transaction. — >1 Mont, on Partnership 167-9. — 2 Id. 258, — 14 East. 210, Teedvs. Elworthy. — - 1 Stark. R. 26, Glassop vs.-Colman. On the dissolution of the partnership by the death of the adult partner, the effects of the partnership pass by operation of law into the hands of tire surviving partner; and these effects are liable in his hands for the partnership debts, though he may not be personally liable for these debts: yetif on coming of age,he retain in his hands the partnership effects, pays part of the debts of the firm, makes partial payment on other outstanding debts, and collects the debts due to tire firm $ this is a confirmation and affirmance of all his contracts as partner, and makes him personally, liable for the debts of tire firm. — Tol-ler on Ex. 454 and authorities there cited. — 2 Mass. R. 120, Wales vs. Willard. — Totter 120. — Bowel on Contracts, 55.— QBarr. 1802.
    
      
      Smalley and Adams, for plaintiffs.
    
      Brown and Royce, for defendant.
   Hutchinson, J.

delivered the opinion of the court. The

court have considered the arguments, of counsel and have come to the conclusion to accept the report. The terms of the partnership do not any where appear. It does not appear that Joseph JB. Loop was to have half of the profits of the trade, aside from the will. And he being a minor at the time, his services, prima facie, belonged to his father. But, it is probable there was an understanding between them that the young man was to have half the profits : but he was furnished with no evidence of it. And the farther furnishes the evidence by the will, and at the same time, to show conclusively that this is tine half he mentions in his will, he adds, “the other half of the profits and the whole stock are to be considered my property.” That is,in dividing the estate it is to be so considered. This is the only fair construction of that clause of the will. The auditor has done right, therefore, in allowing the estate of Joseph B. Loop one half only of the profits of said trade. With regard to the infancy, die facts found and reported by the auditor showing the acts of the said Joseph,after he became of age, are rather too vague to warrant the conclusion drawn, aside from his character of executor. But in that character he held all the property he has now to account for, from his fathers decease till his own. It was his duty to act the part of a faithful executor in severing this property of his father from his own, and keeping it safely, ready to account, and a breach of this trust can never be covered by infancy. The auditor has done right in holding him to account, the same as though as he had been of full age. The report is accepted in toto.  