James v. Dixon

Scott, Judge,

delivered the opinion of the court.

1. The approval of the bond by the county court was not indispensable to its validity. Wherever the law requires a bond to be approved, that bond will be binding until it is disapproved, unless it is otherwise expressly declared. When the bond is *540 approved, the approval will relate to its delivery. There is nothing in the statute which makes the approval of the bond a prerequisite to the vesting of the property in the administrator. (Jones v. State, 7 Mo. Rep. 81 .)

2. As to the notice given by the administrator to the surviving partner, requiring him to give bond for the due administration of the partnership effects, we are of the opinion that it was sufficient. If a citation from the county court had been necessary to divest the property of the survivor, it might have been otherwise. But the law seems to divest the property of the survivor, by requiring the administrator of the deceased partner to include the partnership effects in his inventory, and the surviving partner is only entitled to retain them upon his giving bond, as required by law. If he fails to do this, then he is required to deliver up the partnership effects, as the surviving partner is only allowed to hold the partnership property upon his giving bond; and, as he must be aware of his own default in not giving bond, if he wishes to retain the partnership goods, there is no hardship in holding that a notice from the administrator of the deceased partner is a sufficient citation within the meaning of the law.

3. After the partnership goods or effects are vested in the administrator of the deceased partner, they would seem to be like any other property in his hands to be administered. It has never been supposed that a failure by an administrator to give the requisite notice of the sale of the personalty of the deceased, would affect the title of a purchaser at that sale. There may be such fraud and collusion between a purchaser and administrator as would induce the courts to set aside the sale, but the bare omission to give the required notice has never been thought to impair the title of a purchaser.

The 43d section of the 2d article of the act concerning administration has nothing to do with this matter. It was not necessary to obtain a special order for the sale of this leasehold.

As the particular piece of property in suit was not placed in *541 the inventory as partnership property, and as it was never surrendered -or given up by the defendant, he is at liberty to contest the fact of its being partnership property, if he has not by his own conduct precluded himself from such a defence. As the administrator did not avail himself of the remedy provided in the 56th section of the 1st article of the administration law, we see no reason why, under the circumstances, the surviving partner may not contest the fact of the partnership in this piece of property.

The other judges concurring, the judgment will be reversed, and the cause remanded.