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Burwell v. Mandeville's Executor. 2 H.

The bill, as framed, states the insolvency of Cawood, and seeks no separate relief against him, and therefore, if it is maintainable at all, it is so solely upon the ground of the liability of the general assets of Mandeville to pay the plaintiff jointly with the partnership funds in the hands of Cawood. In respect to another suggestion that West was not a necessary party to the bill, in his character of residuary legatee of the personalty, that may be admitted; at the same time it is as clear that as he had an interest in that residue, if Mandeville's general assets were liable for the plaintiff's debt; and, therefore, the plaintiff might at his option join him in the suit, and if West did not object, no other person would avail himself of the objection of his misjoinder. Then, as to the liability of the general assets of Mandeville in the

hands of his executor for the payment of the plaintiff's debt, [ * 576 ] we are * of opinion that they are not so liable, and shall now

proceed to state the reasons for this opinion. By the general rule of law, every partnership is dissolved by the death of one of the partners. Scholfield v. Eichelberger, 7 Pet. 586. It is true that it is competent for the partners to provide by agreement for the continuance of the partnership after such death ; but then it takes place in virtue of such agreement only, as the act of the parties, and not by mere operation of law. A partner, too, may, by his will, provide that the partnership shall continue notwithstanding his death; and if it is consented to by the surviving partner, it becomes obligatory, just as it would if the testator, being a sole trader, had provided for the continuance of his trade by his executor, after his death. But, then, in each case the agreement or authority must be clearly made out; and third persons, having notice of the death, are bound to inquire how far the agreement or authority to continue it extends, and what funds it binds; and if they trust the surviving party beyond the reach of such agreement, or authority, or fund, it is their own fault, and they have no right to complain that the law does not afford them any satisfactory redress.

A testator, too, directing the continuance of a partnership, may, if he so choose, bind his general assets for all the debts of the partnership contracted after his death. But he may also limit his responsibility, either to the funds already embarked in the trade, or to any specific amount to be invested therein for that purpose; and then the creditors can resort to that fund or amount only, and not to the general assets of the testator's estate, although the partner, or executor, or other person carrying on the trade may be personally responsible for all the debts contracted. This is clearly established by the case Ex parte Garland, 10 Ves. 110, where the subject was very fully dis

Burwell v. Mandeville's Executor. 2 H.

cussed by Lord Eldon ; and Ex parte Richardson, 3 Madd. 138, 157, where the like doctrine was affirmed by Sir John Leach, (then vicechancellor,) and by the same learned judge when master of the rolls, in Thompson v. Andrews, 1 Mylne & Keene, 116. The case of Hankney v. "Hammond, before Lord Kenyon, when master of the rolls, reported in Cooke's Bankrupt Law, 67, 5th ed., and more fully in a note to 3 Madd. Rep. 148; so far as may be thought to decide that the testator's assets are generally liable under all circumstances, where the trade is directed to be carried on after his death, has been completely overturned by other later cases, and expressly overruled by Lord Eldon in 10 Ves. 110, 121, 122, where he stated that it stood * alone, and he felt compelled to decide against [ * 577 ) its authority. The case of Pitkin v. Pitkin, 7 Conn. 307, is fully in point to the same effect, and indeed, as we shall presently see, runs quatuor pedibus with the present.

And this leads us to remark, that nothing but the most clear and unambiguous language, demonstrating in the most positive manner that the testator intends to make his general assets liable for all debts contracted in the continued trade after his death, and not merely to limit it to the funds embarked in that trade, would justify the court in arriving at such a conclusion from the manifest inconvenience thereof, and the utter impossibility of paying off the legacies bequeathed by the testator's will, or distributing the residue of his estate, without, in effect, saying, at the same time, that the payments may all be recalled if the trade should become unsuccessful or ruinous. Such a result would ordinarily be at war with the testator's intention in bequeathing such legacies and residue, and would, or might, postpone the settlement of the estate for a half-century, or until long after the trade or continued partnership should terminate. Lord Eldon, in 10 Ves. 110, 121, 122, put the inconvenience in a strong light, by suggesting several cases where the doctrine would create the most manifest embarrassments, if not utter injustice; and he said that the convenience of mankind required him to hold that the creditors of the trade, as such, have not a claim against the distributed assets in the hands of third persons, under the directions in the same will, which has authorized the trade to be carried on for the benefit of other per

This, also, was manifestly the opinion of Sir John Leach, in the cases 3 Madd. 138; 1 Mylne & Keene, 116; and was expressly held in the case in 7 Conn. 307.

Keeping these principles in view, let us now proceed to the examination of the will and codicil in the present case.

There can, we think, be no doubt that the testator intended by his will to dispose of the whole of his estate, real and personal. The introductory words


Burwell v. Mandeville's Executor. 2 H.

to his will already cited, show such an intention in a clear and explicit manner. The testator there says: “I do hereby direct the disposal which I desire of my earthly remains after my decease, and of such real and personal estate as I may possess when called hence to a future state.” He, therefore, looks to the disposal of all the estate he shall die possessed of. It is said that, admitting such to be his intention, the testator has not carried it into effect, because the resid

uary clause declares John West his “residuary legatee [ * 578 ] only, and * not his residuary devisee also; and that we are

to interpret the words of the will according to their legal import, as confined altogether to the residue of the personal estate. This is, in our judgment, a very narrow and technical interpretation of the words of the will. The language used by the testator shows him to have been an unskilful man, and not versed in legal phraseology. The cardinal rule in the interpretation of wills, is, that the language is to be interpreted in subordination to the intention of the testator, and is not to control that intention when it is clear and determinate. Thus, for example, the word “legacy” may be construed to apply to real estate where the context of the will shows such to be the intention of the testator. Thus, in Hope v. Taylor, 1 Burr. 268, the word " legacy” was held to include lands, from the intention of the testator deduced from the context. The same doctrine was fully recognized in Hardacre v. Nash, 5 Term Rep. 716. So, in Doe dem. Tofield v. Tofield, 11 East, 246, a bequest of “ all my personal estates" was construed upon the like intention to include real estate. But a case more directly in point to the present, and differing from it in no essential circumstances, is Pitman v. Stevens, 15 East, 505. There the testator, in the introductory clause of his will, said: “I give and bequeathe all that I shall die possessed of, real and personal, of what nature and kind soever, after my just debts is paid. I hereby appoint Capt. Robert Preston my residuary legatee and executor.” The testator then proceeded to give certain pecuniary legacies, and finally recommended his legatee and executor to be kind and friendly to his brother in law, J. C., &c., and begs him to do something handsome for him at his death, &c. The question was, whether Preston was entitled to the real estate of the testator, under the will, and the court held that he was, and that the words “residuary legatee and executor," coupled with the introductory clause and the recommendation, clearly established it. Upon that occasion, Lord Ellenborough, after referring to the words of the introductory clause, said: “ Then he appoints Capt. P. his residuary legatee and executor; residuary legatee and executor of what ? of all that he should die possessed of, real and personal, of what nature and kind soever; that is, of all he should

Burwell v. Mandeville's Executor. 2 H.

not otherwise dispose of. The word · legatee,' according to the cases, particularly Hardacre v. Nash, may be applied to real estate, if the context requires it, as was said by Lord Kenyon upon the word · legacy. Then, in the subsequent parts of the will, he contemplates that his residuary legatee and executor will have the disposition * of his whole funds; but after some legacies and [ * 579 ] annuities, he recommends him to be kind and friendly to his brother in law," &c.

In the present case, it is plain that the testator contemplated some positive benefit to West, when he designated him as his residuary legatee; and yet, at the same time, he contemplated that his personal property might not be sufficient to cover the amount of legacies given by his will; and in that event he directs his executors to dispose of so much of his real estate as will fully pay his legacies; so that, if we restrain the words “residuary legatee” to the mere personalty, we shall defeat the very intention of the testator, apparent upon the face of the will, to give some beneficial interest to West, in an event which he yet contemplated as not improbable. On the other hand, if we give an enlarged and liberal meaning to the residuary clause as extending to the real estate, it will at once satisfy the introductory clause, and upon a deficiency of the personal assets will still leave an ample amount to the beneficiary, who appears to have been an object of the testator's bounty. But if this interpretation should be (as we think it is not) questionable ; one thing is certain, and that is, that the testator did not contemplate that his personal assets would not be more than sufficient to pay all his debts; for he does not charge his real estate with his debts, but only with his legacies, in case of any deficiency of personal assets; and the residuary clause, if it were limited to the mere residue of his personal assets would also show that the testator did not provide for any debts which should arise from any subsequent transactions after his death.

If this be so, then we are to look to the codicil to see whether any different intention is there disclosed in clear and unambiguous terms. In the first place, the language of the codicil is just such as the testator might properly have used, if he intended no more than to pledge his funds already embarked in the partnership for the payment of the partnership debts. The codicil says: “It is my will that my interest' in the copartnership, &c., shall be continued therein until the expiration of the term limited by the articles.” Now, his interest in the firm then was his share of the capital stock and profits, after the payment of all debts and liabilities due by the firm. It is this interest, and not any new capital, which he authorizes to be embarked in the firm. He does not propose to add any thing to his existing interest,

Burwell v. Mande ville's Executor. 2 H.

but simply to continue it as it then was. How, then, can this court

say that he meant to embark all his personal assets in the [ * 580 ) hands of his executor as a pledge for the future debts, * or

future responsibilities, or future capital of the firm ? That would be to enlarge the meaning of the words used beyond their ordinary and reasonable signification. And besides, it is plain that the testator did not mean to have the payment of his legacies indefinitely postponed, until the expiration of the articles, and the ascertainment and final adjustment of the concerns of the firm, which might perhaps extend to ten or twenty years. So that to give such an enlarged interpretation to the terms of the codicil, (as is contended for,) for the codicil must be construed as if it were incorporated into the will, would be to subject the legatees to all the fluctuations and uncertainties growing out of the future trade, and might deprive the residuary legatee of every dollar intended for his benefit. There is another consideration of the matter, which deserves notice. Would the real estate of the testator, upon a deficiency of his personal assets, be liable for the debts of the firm contracted after his death, by mere operation of law, as it would be for such debts as were contracted in his lifetime? If it would, then it is apparent, that all the legatees and devisees might in the event of the irretrievable and ruinous insolvency of the firm be deprived of all their legacies and devises, although the legacies were charged upon the real estate. If it would not, then it is equally apparent that the testator did not contemplate any liability of his general assets, real and personal, for the payment of any debts, excepting those which were subsisting at the time of his death. There is yet another consideration, not unimportant to be brought under review. It is, that the whole business of the firm is to be conducted by Cawood alone, and that neither the executor nor the legatees are authorized to interfere with or to scrutinize his transactions. Such an unlimited power over his whole assets by a person wholly unconnected with the administration of his estate could scarcely be presumed to be within the intention of any prudent testator. If to all these we add the manifest inconveniences of such an interpretation of the codicil, thus suspending for an indefinite time the settlement of the estate and the payment of the legacies, it is not too much to say, that no court of justice ought upon principle to favor, much less to adopt it.

And, certainly, there is no authority to support it; at least none, except Hankey v. Hammock, which cannot now, for the reasons already stated, be deemed any authority whatsoever. On the other hand, the case Ex parte Garland, 10. Ves. 110, and Ex parte Richardson, 3 Madd. Rep. 138, although distinguishable from the present

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