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(Nev., 221 Pac. 241.)

had turned over to the appellant the estate upon her qualification, the estate would have been liable for all necessary expenses incurred in its preservation and protection, plus her commission. Why should it not

-liability for

ervation.

pay the expenses inexpenses of pres- curred by the respondent in preserving it? In what way has it been damaged? Counsel says appellant might have handled the estate at much greater saving than did the respondent. Perhaps she might; but, on the other hand, she might have incurred much greater expense in handling it. But this is pure speculation. The lower court found that the indebtedness so incurred was necessary and proper for the protection of the estate, and, as appellant did not bring up the evidence, the presumption is conclusive in favor of the findings so made.

Our attention is directed to the case of Slate v. Henkle, 45 Or. 430, 78 Pac. 325, as sustaining the conclusion we have reached. It reviewed the authorities as to an executor de son tort, and qotes approvingly as follows from Rutherford v. Thompson, 14 Or. 236, 12 Pac. 382: "The person who intermeddles with the goods of the deceased is now only responsible to answer in an action to the rightful executor or administrator. And, whether we consider the intermeddler as an executor de son tort, or as a wrongdoer, the liability to respond to the rightful executor or administrator is the same, and unaffected, and the law unchanged. The fiction of offense may be gone, but the unauthorized act of intermeddling remains, to be dealt with judicially, according to the principles of right and justice, as applied by the law in such cases. Now, from the fact that the intermeddler with the goods of a deceased is only liable to respond to the rightful executor or administrator for the value of the goods, etc., it by no means follows, if what he did was of benefit and not injury to the estate, as the payment of funeral expenses, or debts of the de

ceased, or charges such as the rightful representative might have been compelled to pay, he would not be allowed to show the same in mitigation of damages in an action of trover, institued by such executor or administrator. In thus compelling him to account with only the rightful representative, the statute does not purport or undertake to deprive him of any proper or legitimate defense. The title of executor de son tort may be repudiated, but the justice of the law will remain, to distinguish between acts which are beneficial and those which are injurious to an estate."

But it is said that the lower court gave credit for certain items of expense incurred by the respondent which he had not paid and hence should not have been allowed. It is said that not an authority can be found holding that such items should be allowed. It can as well be said that not one has been cited holding the contrary. We think, however, the case of Slate v. Henkle, supra, is contrary to appellant's contention. It was there held that the item of $100 claimed by Slate should have been allowed if the services were rendered in preserving or caring for the property of the estate. In any event the estate got the benefit of the articles enumerated, and should pay for them. There is no more reason for allowing credit allowance for for things actually paid for and which benefited the estate, than for those which were not paid for, if they benefited the estate.

unpaid bills.

Another suggestion is made by counsel for appellant, but it goes rather to a matter of policy than to a question of law, and we decline to consider it.

Perceiving no prejudicial error, the order and judgment are affirmed.

Ducker, Ch. J., and Sanders, J.,

concur.

A petition for rehearing having been filed, Coleman, J., on April 14,

1924, handed down the following additional opinion: (- Nev. -, 224 Pac. 807):

A lengthy petition for a rehearing has been filed. It urges the granting of a rehearing upon several grounds. So far as the argument advanced which goes to support the contention that we erred in our ruling upon the matters presented and considered originally, we wish simply to say that we are entirely satisfied with our former disposition of them. We may observe that the petition urges two additional theories why we should grant a rehearing, one of which is antagonistic to that urged in the original brief. We could dis

pose of both of them upon the ground that a point urged for the first time in a petition for a rehear

ing will not be considered. Nelson v. Smith, 42 Nev. 302, 176 Pac. 261, 178 Pac. 625.

As to the ground which is antagonistic to the original theory, it may be said it is a well-established rule that, when a case has been tried upon one theory, a party will not be permitted to shift his position and urge a theory diametrically opposed to the one originally relied upon.

The petition for rehearing is denied.

Ducker, Ch. J., and Sanders, J.,

concur.

ANNOTATION.

Allowance for expenses and disbursements by executor or administrator after revocation of his letters.

This annotation is not concerned with any question of the right of an administrator or executor whose letters have been revoked to claim an allowance for any expense incurred or disbursement made on behalf of the estate prior to the revocation of his letters, but is limited to disbursements or expenses in that respect which are made thereafter.

While it is stated that an executor de son tort has no inherent right to pay claims out of the assets of the estate, he is held to be entitled to reimbursement for an expenditure which he has made out of his own moneys for the relief of the estate, or for sums paid out while acting in the capacity of an executor de son tort, not for his own benefit, if he can affirmatively show that the sums paid were correct. 11 R. C. L. p. 463. The reported case (RE PEDROLI, ante, 841), proceeding upon the assumption for the purposes of the case, without deciding the point, that there can be no such thing under the local practice as an executor de son tort, and that consequently the respondent, after the revocation of his letters, must be held liable as a wrong doer for all assets of the estate which into his hands, nevertheless

come

holds that he is entitled to an allowance from the estate for all expenses incurred by him for its preservation, since he is entitled to protection for all acts which a rightful executor might have done, which are not for his benefit.

But in Bradley's Estate (1875) 32 Phila. Leg. Int. (Pa.) 257, it was stated that an estate would clearly not be liable for professional services to persons appointed administrators which were rendered after the letters of administration were revoked. The statement appears, however, to be but a dictum, as it did not appear at what date the services were rendered, and the court in fact allowed a part of the claim against the estate for the services. In this case the father of the decedent, who was entitled to administer upon the estate, had, after some delay caused by defendants, who had secured letters of administration, obtained a decree removing the defendants as administrators and appointing himself instead; the defendants had resisted his action in this respect, as well as attempts on his part to settle the estate after his appointment; and the court held that the defendants were properly charge

able with expenses caused by their unjustifiable conduct in interposing unfounded claims and causing delays in the settlement of the estate.

It has been held that the authority of an executor to make any payment on account of an estate, or to act for the estate, ended with the revocation of his letters testamentary, and the account was to be settled as of the time of the revocation of letters testamentary. Re Blair (1900) 49 App. Div. 417, 63 N. Y. Supp. 678. In that case a person named as executor in an instrument purporting to be a will, who secured a decree of the surrogate's court admitting the instrument to probate and issuing letters testamentary to him, which were thereafter revoked following a decision of the general term, affirmed by the court of appeals, reversing the surrogate's decree, was denied an allowance against the estate for legal services of counsel employed by him in the probate pro

ceeding and on appeal, for which he had not actually paid during the time he was executor and which were not entered as paid in the original account filed after revocation of the letters, but as an amount due from him, notwithstanding that, after a ruling that he could only be allowed for amounts actually paid, he was allowed by the surrogate to file a supplemental account in which he alleged that the sum had actually been paid by him; it appearing that such payment had been made by the giving of his promissory note to the attorney after that ruling.

The reported case (RE PEDROLI, ante, 841) holds, however, that the fact that one who intermeddles with an estate after his letters of administration are revoked has not paid bills incurred for its preservation does not bar his right to an allowance for the amount of such expenses when he turns the estate over to the rightful executor. G. S. G.

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1. A declaration is a so-called "Massachusetts trust," exempting the trustee from personal liability for obligations of the trust, does not affect the liability which the law fixes upon him; and, where the declaration of trust also provides for full control of the property by the trustee and exempts the cestui que trust from liability, the trustee is personally liable. [See note on this question beginning on page 851.]

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of the property in the trustee, relieves the cestuis que trust from liability for obligations incurred, and gives them the right to share in the profits only, are not liable as partners or as principals for debts of the enterprise.

[See notes in 7 A.L.R. 612; 10 A.L.R. 887.]

Partnership - test of.

5. The test of whether or not a business is a partnership is the intention of the parties.

[See 20 R. C. L. 831; 3 R. C. L. Supp. 1104; 4 R. C. L. Supp. 1379.]

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APPEAL by defendants from a judgment of the Circuit Court for Hempstead County (Haynie, J.) in favor of plaintiff in an action brought to recover an amount due for goods sold and delivered to defendants as alleged members of a certain partnership. Affirmed as to defendant trustees and reversed as to the other defendants. The facts are stated in the opinion of the court. Messrs. Gentry & Purkins, for appellants:

Practically every court that has passed upon the question has upheld the validity of the "common-law trust relation," and where the courts have declared the "declaration" to create a partnership relation, the turning point has been upon the construction of the particular "declaration of trust" under construction.

Crocker v. Malley, 249 U. Ş. 223, 63 L. ed. 573, 2 A.L.R. 1601, 39 Sup. Ct. Rep. 270; Williams v. Milton, 215 Mass. 1, 102 N. E. 355; Simson v. Klipstein, 88 N. J. Eq. 229, 102 Atl. 242; Rhode Island Hospital Trust Co. v. Copeland, 39 R. I. 193, 98 Atl. 273; Home Lumber Co. v. Hopkins, 107 Kan. 153, 10 A.L.R. 879, 190 Pac. 601; Wells-Stone Mercantile Co. v. Grover, 7 N. D. 460, 41 L.R.A. 252, 75 N. W. 911; Davis v. Hudgins, Tex. Civ. App. —, 225 S. W. 73; Wilson v. Todhunter, 137 Ark. 80, 207 S. W. 221; Sears, Trust Estates, p. 138,90; Mehaffy v. Wilson, 138 Ark. 281, 211 S. W. 148; Buford v. Lewis, 87 Ark. 416, 112 S. W. 963.

Mr. E. F. McFaddin, for appellee: The trustees themselves are certainly individually liable.

Taylor v. Davis (Taylor v. Mayo) 110 U. S. 330, 28 L. ed. 163, 4 Sup. Ct. Rep. 147; Sears, Trust Estates, pp. 44, 45; Thompson, Business Trusts, pp. 35, 36.

The shareholders or beneficiaries are liable to plaintiff.

Doyle-Kidd Dry Goods Co. v. Kennedy, 154 Ark. 573, 243 S. W. 66; McCamey v. Hollister Oil Co. - Tex. Civ. App. 241 S. W. 689; Baker-McGrew Co. v. Union Seed & Fertilizer Co. 125 Ark. 146, 183 S. W. 571; Wells v. Mackay Teleg.-Cable Co. - Tex. Civ. App. —, 239 S. W. 1001; Home Lumber Co. v. Hopkins, 107 Kan. 153, 10 A.L.R. 879, 190 Pac. 601; Rhode Island Hospi

tal Trust Co. v. Copeland, 39 R. I. 193, 98 Atl. 273; Howe v. Wichita State Bank & T. Co. Tex. Civ. App. 242 S. W. 1091; Sergeant v. Goldsmith Dry Goods Co. 110 Tex. 482, 10 A.L.R. 743, 221 S. W. 259.

All the defendants are liable as partners to third persons on the grounds of public policy.

Wells v. Mackay Teleg.-Cable Co. Tex. Civ. App. 239 S. W. 1001; Jacoway v. Denton, 25 Ark. 634; DoyleKidd Dry Goods Co. v. Kennedy, supra. Humphreys, J., delivered the opinion of the court:

Appellee instituted suit against appellant in the circuit court of Hempstead county, to recover $180 for goods sold and delivered to the Hope Oil Trust, a concern doing business under a written declaration commonly known as the "Massachusetts trust." The suit is based upon an allegation that the Hope Oil Trust is a partnership, and that appellants are members thereof, and, as such, are individually liable for the indebtedness of the concern. The six appellants first named were denominated trustees in the declaration. They filed a separate answer, admitting the amount of the account and that the goods were sold to the Hope Oil Trust, but denying individual liability, upon the ground that they are exempted from liability under paragraph 21 of the declaration, which in part is as follows: "Every act done, power exercised, or obligation assumed, by the trus tees, pursuant to the provisions of this agreement, or in carrying out the trusts herein contained, shall be held to be done, exercised, or as

(159 Ark. 621, 252 S. W. 602.)

sumed, as the case may be, by them as trustees, and not as individuals, and every person or corpora..on contracting with the trustees, as well as every beneficiary hereunder, shall look only to the fund and property of the trust for payment under such contract, or for the payment of any debt, mortgage, judgment, or decree, or the payment of any money that may otherwise become due or payable on account of the trusts herein provided for, and any other obligation arising under this agreement in whole or in part; and neither the trustees nor the shareholders, present or future, shall be personally liable therefor."

The two last-named appellants are shareholders, and filed a separate answer denying liability, upon the ground that under the terms of the declaration they are cestuis que trust. They claim exemption under paragraph 21, quoted above, and paragraphs 9 and 20, which are as follows:

9. "The trustees under this agreement shall have the sole legal title to all property, in any part of the United States of America, or in any foreign country, at any time held, acquired, or received by them as trustees under the terms of this agreement, or in which the shareholders under this agreement shall have any beneficial interest as such shareholders, and they shall have and exercise the exclusive management and control of the same, in any manner that they shall deem for the best interest of the shareholders, with all the rights and powers of absolute owners thereof."

20. "Shareholders hereunder shall not be liable for any assessment, and the trustees shall have no power to bind the shareholders personally."

Demurrers were filed to the separate answers and sustained by the court. Appellants stood upon their answers and refused to plead further, whereupon the court rendered judgment against them, from which is this appeal.

tion of the personal liability of the trustees and certificate owners in the business operated under the trust declaration. The instrument is long, and it would unduly extend this opinion to set it out in extenso; a statement of the substance thereof being sufficient for the purposes of this cause. In short the instrument reflects that trustees associated themselves together for the purpose of selling certificates of stock in the name of Hope Oil Trust and of using the proceeds for investment in securities and enterprises for the equal benefit of the shareholders. The trustees reserved the entire management and control of the business in themselves, the right to hold the title to all the property and dispose of same, and to elect their own successors in case of the resignation or death of either one of them. The indenture in effect provided that the trustees should be masters of the trust property as well as the business, without suggestion, supervision, or interference on the part of the stockholders. No authority or power whatever was conferred upon the stockholders. In fact all authority and control of the property and business was withheld from them. No provision was even made for a meeting of the stockholders at any time for any purpose. Under the terms of the declaration they were nonparticipants, save to share in dividends and profits that might be declared and distributed among them by the trustees. The paragraphs of the declaration exempting the shareholders from personal liability have been set out in full.

The statutes of this state provide for and regulate two kinds of business concerns,-limited partnerships and corporations. The other business organizations operate in this state under the general law of the land, not under statutory protection and restrictions. General partnerships, joint-stock joint-stock companies, business trusts, and other associations, are not prohibited from doing business in this state. With these

The appeal involves the sole ques- preliminary remarks we proceed at 31 A.L.R.-54.

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