
    Matter of the Estate of Frederick H. Sauer, Deceased.
    
      (Surrogate’s Court, New York County,
    
    
      January, 1915.)
    Wills—When not Bevoked by Advent of Afteb-bobn Child—Petition Under Code Civ. Pro., § 2615, Dismissed—Decedent Estate Law, §§ 26, 27.
    A will is not revoked by the advent of an after-born child of testator, but the child as heir is put to his or her special statutory action under section 27 of the Decedent Estate Law and only the Supreme Court may determine whether or not the action will lie.
    A petition under section 2615 of the Code of Civil Procedure to determine whether or not a testator by his last will had provided for his after-born child in conformity with section 26 of the Decedent Estate Law must be dismissed, but without prejudice to the proper action to enforce the infant’s rights in the premises, if any.
    Proceeding upon the probate of a will.
    Seybel & French, for proponent.
    Edward R. Rayher, special guardian.
   Fowler, S.

In a probate proceeding the special guardian of an infant asks for construction of the will, pursuant to the old part of section 2615 of the Code of Civil Procedure. The will in this matter was admitted to probate and its construction reserved, in conformity with the statute, for further hearing and decree. Such hearing has now been brought on and counsel fully heard, but no proofs were tendered. The single point for construction is whether or not the will of the late Mr. Sauer, the father, provides for the after-born infant child in conformity with section 26, Decedent Estate Law. If not so provided for, section 28, Decedent Estate Law, prescribed the remedy of the omitted! child and confers a right of action on such child in vindication of .the right. Such action does not lie in the 'Surrogate’s Court. I have no doubt that, under the circumstances, I ought not to proceed to construction, as any decree I might enter thereon would not be binding on the court, in which the action to vindicate the infant’s right lies. If a will-affects real property, I am persuaded that no one would take a title to it resting on our decree for construction under the circumstances shown in this matter. The remedy of an after-born child, under circumstances of the kind here presented, is exclusive, and depends wholly on statute. (Decedent Estate Law, § 27.) How, then, can our decree bind a court possessed of exclusive jurisdiction? It has been held by our highest court that the after-birth of an infant is not operative as a revocation of the parent’s will. (Smith v. Robertson, 89 N. Y. 555.) The statutory right given to the after-born child, it has been said, is suggested by precedents found in the Civil Law. Per Soott, J., Wormser v. Croce (120 App. Div. 289). I will-now follow the analogy suggested by Mr. Justice Soott in the case last cited a little further than he found necessary. In the Roman law the principle of legitim prevented the disherison of children, and, to a certain extent, at one time, before the Statute of Wills, this principle was recognized by our own common law, especially in those ancient counties or towns once subject to the civil law during the time of the Roman occupation and ascendancy. This principle is still recognized in the law of France (Code Civil, art. 913), and is binding on our own-citizens who have French property. (Pellerin’s French Law of Wills of Foreigners, 30.) The lex Falcidia known to the Roman law, and often cited by our Court of Appeals in cases of this kind, provided that no one could bequeath more than three-fourths of his property. This, before Justinian’s time, at least, practically carried to the Roman heir, in any event, one-fourth of. the .father’s estate. A will which did not expressly disinherit children was also, in Roman law, said- to be injustum or nullms esse momenti. (D. 28, 3, 3, 3.) A violation of these principles or rules was- not, I think, in the Roman Law, remedied by the querela inofficiosi testamenti, or the usual Roman action to set aside the will, but by the common vindicatory action belonging to all heirs by the Roman system. It is just at this point that the analogies of the Roman law, alluded' to by Mr. Justice Scott in the case cited, are most important to us in this matter before me. It is our statute which gives the right to after-born children omitted from wills. We have seen that the will under our law is not revoked by the afterbirth of a child, but that the child is put to his or her statutory action as heir. In our State this1 action is a special statutory action which lies in a special court, at least lies only in our general court, and not in this court. No other court than that alone vested with jurisdiction of such actions can determine whether the action lies or not, and that is just what this petition for construction virtually asks me to determine in this proceeding for probate. As my construction will not be binding on the Supreme Court or, indeed, on any one affected by the statute mentioned, I obviously ought not to render any further judgment or decree in this matter. Of all useless and troublesome things an ineffectual and voidable judgment is the most useless and the most troublesome. I expressed this opinion, in substance, on the argument, and my subsequent examination of the matter only confirms that opinion. The petition will therefore be dismissed, but without prejudice to the proper action to enforce the infant’s rights in the premises, if any.

Decreed accordingly.

RIGHTS AND LIABILITIES OF SURVIVING PARTNERS.

The survivor is entitled to the possession of the firm assets for the purpose of converting them into cash, paying its debts and winding up the firm’s affairs. (Huggins v. Huggins, 43 S. E. [Ga.] 759; Levy v. Archenbold, 44 S. W. [Texas] 46; Lowenstein v. Lowenstein, 114 N. Y. 65; Roberts v. Law, 4 Sandf. 642; Hooley v. Grive, 9 Daly, 104; Carrere v. Spofford, 46 How. Pr. 294; Waring v. Waring, 1 Redf. Surr. 205.)

The survivor cannot appropriate the assets of the firm to the payment of individ.ua! debts. (Jones v. Dulaney, 86 S. W. 547, 977; 27 Ky. L. Rep. 702, 810; Hutchinson v. Smith, 7 Paige, 26; Rogers v. Flournoy, 21 Tex. Civ. App. 556.)

The surviving partner has the exclusive right to liquidate the affairs of the firm and he must do this promptly and honestly. (Haynes v. Brook, 8 N. Y. Civ. Pro. 106; Camp v. Fraser, 4 Dem. Surr. 212.)

The firm title to partnership- property is not converted by the common-law rule of survivership into the separate title of the surviving partner. (Matter of Wormser, 51 N. Y. App. Div. 441.)

The survivor has the exclusive right to control and dispose of the firm title. (Callanan v. Keesville R. Co., 48 Misc. [N. Y.] 476; Emerson v. Sentee, 118 U. S. 3.)

The executor of the surviving partner does not succeed to the position of a surviving partner. (McCann v. Hazard, 36 Misc. 7.)

The surviving partner cannot bind the estate of deceased by negotiable paper given in the firm name after the death, or by indorsement of firm paper thereafter. (Tillotson v. Tillotson, 34 Conn. 335.)

The indorsement of firm paper by the survivor will possess a perfect title thereto. (Glasscock v. Smith, 25 Ala. 474; Bredow v. Mutual Savings Inst., 28 Mo. 181; Douglass v. Hall, 22 Vt. 451.)

A receiver may be appointed to take possession and control of firm assets where confidence has -been destroyed by the survivor’s mismanagement, improper conduct, or insolvency. (Evans v. Evans, 9 Paige, 178.)

The survivor has the right to collect all claims due the firm. (Bernard v. Wilcox, 2 Johns. Cas. 374.)

The survivor must not exercise his authority in winding up the affairs of the firm for his private advantage. (Gable v. Williams, 59 Md. 46; Dewey v. Chapin, 156 Mass. 35.)

Upon an obligation of the firm, the surviving partner is liable to a several action, precisely as though it were his individual obligation; the representatives of the deceased partner cannot be joined with him in a suit at law. (Carrere v. Spofford, 46 How. Pr. 294; Bridge v. Swain, 3 Redf. Surr. 487; Livingston v. Cox, 6 Pa. St. 360.)

The liability of the survivor is not affected by creditors proceeding against the estate for the same claim. (Finnegan v. Allen, 60 Ill. App. 354.)

The survivor may collect from the estate of the deceased partner any debt owing by the deceased to the firm or to himself as creditor partner. (Painter v. Painter, 68 Cal. 395; Bird v. Bird, 77 Me. 499; McCormick’s Appeal, 55 Pa. St. 252.) And he may retain firm assets to satisfy such indebtedness. (Id.)

The, surviving partner and the heirs of the deceased partner hold the title to partnership real estate as a part of the partnership stock, and the surviving partner is generally accorded the right of possession of such land for the purposes of winding up the firm’s business. (French v. Vanatta, 83 Ark. 301; Nimick’s Estate, 179 Pa. St. 591; Sternberg v. Larkin, 58 Kan. 201; Holton v. Guinn, 65 Fed. 450.)

A quitclaim deed by a surviving partner of partnership realty conveys only the individual interest of the grantor. (Jackson v. Gunton, 218 Pa. St. 275.)

If the survivor has sold the partnership realty for full value, in order to pay firm debts, the purchaser can compel the heirs or devisees to join with the survivor in a conveyance. (Andrews v. Brown, 21 Ala. 437; Dupuy v. Levenworth, 17 Cal. 262; Sprague Mfg. Co. v. Hoyt, 29 Fed. 421.)

The personal representative of a deceased partner cannot compel a sale of the latter’s interest in firm realty, which is needed to pay firm debts. (McKean v. Vick, 108 Ill. 373.)

A deceased partner’s share of the surplus of the real estate of the copartnership which remains after paying the debts of the firm, and adjusting all the equitable claims of the different members of the firm, as between the heirs at law and the personal representatives of the deceased partner is to be treated as real estate. (Wilcox v. Wilcox, 13 Allen [Mass.] 252; Duchan v. Sumner, 2 Barb. Ch. [N. Y.] 165; Smith v. Jackson, 2 Edw. [N. Y.] 28; Leaf’s Appeal, 105 Pa. St. 505; Logan v. Greenlaw, 25 Fed. 299.)

If the survivor is compelled to pay firm debts, he may reimburse himself from the deceased partner’s estate to the extent of that partner’s share of the losses. (Olleman v. Reagan, 28 Ind. 109.)

LIABILITIES OF SURVIVOR

The surviving partner is answerable for any depreciation in the value of the firm’s assets, or for any loss thereof, due to his failure to wind up the firm’s affairs with due diligence and skill. (Maynard v. Richards, 166 Ill. 466; Miller v. Jones, 39 Ill. 54; Cockerham v. Bosley, 52 La. 65; Bundy v. Youmans, 44 Mich. 376; Stanhope v. Suplee, 2 Brewst. 455.)

If he uses the assets for his personal benefit, or in a manner not legally authorized, he does so at his own risk. (Banchie v. Smylie, 104 N. Y. App. Div. 513.)

If the survivor makes a profit from the unauthorized use of firm assets, he must account for the deceased partner’s ratable share thereof. (Painter v. Painter, 65 Pac. [Cal.] 135; Oliver v. Forrester, 96 Ill. 315; Young v. Scoville, 99 Iowa, 177; Booth v. Parkes, Beatty [England] 444.)

If the representative is compelled'to pay firm debts he may compel the survivor to'contribute. (Hill v. Huston, 15 Gratt. [Va.] 350.)

If the surviving partner makes a voluntary conveyance of his property, it may be set aside as fraudulent against the deceased partner’s representatives. (Alston v. Rowles, 13 Fla. 117.)  