In re Hearns — 147 N.Y.S. 447

Majority

p. 447

In re HEARNS et al.

(Supreme Court, Appellate Division, Second Department.

May 1, 1914.)

Headnote

1. Partnership (§ 67^[1] )—Firm Property—Stock Exchange Seat.

A seat in a stock exchange purchased with firm funds, and so carried on the firm books, was partnership property, though standing in the name of one of the partners.

[Ed. Note.—For other cases, see Partnership, Cent. Dig. §§ 95-100; Dec. Dig. § 67.*]

2. Executors and Administrators (§ 44*)—Partnership—Firm Property— Provisions of Will—Effect.

A provision in the will of a partner to sell and dispose of a seat in a stock exchange, standing in the testator’s name but owned by the firm of which he was a member, was merely a direction to facilitate liquidation by the surviving partner and did not change the equitable title.

[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. § 295; Dec. Dig. § 44.*]

3. Executors and Administrators (§ 44*)—Partnership—Dissolution and Accounting—Jurisdiction of Surrogate.

The disposition of a stock exchange seat owned by a partnership but standing in the name of a deceased partner, and the value to be realized therefrom, were part of the general liquidation of the firm assets and liabilities not within the surrogate’s jurisdiction.

p. 448

4. Executors and Administrators (§ 469*)—Partnership—Dissolution ANp Accounting—Jurisdiction of Surrogate. . .

In a proceeding for the judicial settlement of executors’ accounts, a reference hy them in their account to unliquidated assets of a partnership, including a stock exchange seat, did not submit the firm liquidation to the surrogate.

[Ed. Note.-—For other cases, see Executors and Administrators, Cent. Dig. §§ 2000-2009, 2012, 2013; Dec. Dig. § 469.*]

Appeal from Surrogate’s Court, Kings County.

Proceeding for the judicial settlement of the account of Joseph J. Plearns and another, as executors of Stewart Barr, deceased. From the decree, the executors, individually and as such executors, and an-, other, appeal.

Reversed in part.

Argued before JENKS, P. J., and CARR, RICH, STAPLETON, and PUTNAM, JJ.

William H. Harris, of New York City, for executors.

Alexander S. Bacon, of New York City, for objector.

[1-4] Decree of the surrogate of Kings county, reversed in so far as it purports to deal with the membership in the New York Stock Exchange, with costs to appellants, payable out of the estate. Though standing in the testator’s name, this membership, having been purchased with firm funds, and so carried on the firm books, was copartnership property. The testamentary provision to sell and dispose of this seat was merely a direction to facilitate liquidation by the surviving partner, and did not change the equitable title. Hence the disposition of the seat, and the value to be realized therefrom, are part of the general liquidation of the firm assets and liabilities, which are not within the jurisdiction of the Surrogate. The reference by the executors in this proceeding to unliquidated assets of the copartnership contained in Schedule F, wherein this membership is enumerated, did not submit to the surrogate the firm liquidation. This modification, however, is without prejudice to any suit against the surviving partner for a firm accounting or otherwise.