Opinion
No. 122206.
1947-03-5
In re PATHIS' ESTATE.
Joseph G. Rotondo and John J. Chester, toth of Columbus, for exceptor. W. B. Cockrell, of Columbus, for surviving partner.
Proceeding in the matter of the estate of Thomas Pathis, deceased, wherein the widow and administratrix filed exceptions to the inventory and appraisement of the partnership in which the deceased had a one half interest.
Order in accordance with opinion.Joseph G. Rotondo and John J. Chester, toth of Columbus, for exceptor. W. B. Cockrell, of Columbus, for surviving partner.
McCLELLAND, Judge.
This matter came on to be heard upon the exceptions filed by the widow and administratrix to the inventory and appraisement of the partnership in which the decedent had a one-half interest. The widow claims that the partnership was appraised too law.
At the outset of the hearing on the exceptions the question was raised as to the jurisdiction of the Probate Court in the matter, in view of the fact that the articles of copartnership make certain provisions in case of the death of either partner. In connection with these provisions counsel calls our attention to Section 8092, General Code.
The provisions in the articles of copart nership with reference to the death of either partner are very short and indefinite. The articles merely provide that, upon the dissolution of the partnership by death, the surviving partner shall have the right within the six month period following the death to purchase the interest of the other partner, after a proper appraisal and inventory of the business has been made, and before such interest can be sold to a third party.
Since the articles of copartnership in no way dispose of the interest of the deceased partner, that is the actual one-half interest in the business or its value in money, upon the death of the partner, the value of the deceased partner's interest becomes a matter of concern for the Probate Court as an asset of the deceased partner's estate, to be accounted for by the administratrix and distributed according to law. This being the case it is necessary for the administratrix to have a proper appraisement of the interest of the deceased partner.
In this case the surviving partner and the administratrix arranged for and had the inventory and appraisement made and filed in this court. Having the appraisement made was a compliance with the articles of copartnership. They also complied with Section 8085, General Code, in having the appraisers appointed by the Probate Court, and the inventory and appraisement was filed by the surviving partner in the Probate Court. Now no objection was made to the appointment of the appraisers but the value which the appraisers fixed is objected to. Since the appraisers are under the jurisdiction of the Probate Court, having been appointed by him, he has the right and duty to review the actions of his appraisers when their judgment is questioned upon exceptions being filed to the appraisement. It is the court's duty to see that this asset of the decedent's estate is appraised at its true value in money for the protection of those interested in the estate, and those interested in the estate are entitled to a fair and impartial appraisement.
Since the administratrix, who is also the widow, agreed with the surviving partner as to the method used in making a proper appraisement and inventory, the articles of copartnership being silent as to the method to be employed, and since they chose the method provided for in Section 8085, General Code, the widow cannot now be permitted to object to the method of appraisement which she agreed to. Since they chose to rely upon this method for the appraisement of the partnership, and since this court has jurisdiction under Section 8085, General Code, in the appraisement of a partnership upon the death of one of the partners, this court, by virtue of Section 10501-53, General Code, has ample jurisdiction to dispose of the matter, as its power is not expressly otherwise limited or denied by statute. In other words, since they immediately referred the matter of appraisement to the Court, and since this Court has ample jurisdiction in partnership appraisements, we hold that this court has the jurisdiction in this case to fix the value of the interest of the deceased partner, both in accordance with Section 8085, General Code, and also in accordance with the terms of the articles of copartnership.
While we are satisfied that what we have heretofore said disposes of the question of jurisdiction here presented, we cannot refrain from stating further that it is our opinion that Section 8092, General Code, has no application in this case, as the conditions specified in the section upon which its operation depends do not exist. The articles of copartnership do not dispense with an inventory and appraisement of the partnership assets and neither od they dispense with a sale of the deceased partner's interest therein. On the other hand, the provisions of Section 8085, General Code, are mandatory in any case that does not come within the provisions of Section 8092, General Code, as the statute says that the surviving partner shall forthwith make application to the Probate Court to have the appraisement made. And Section 8088, General Code, provides that if the surviving partner neglects to have the inventory and appraisement made, the administrator must have it made.
Counsel has cited the case of Steigert v. Steigert, 57 Ohio App. 255, 13 N.E.2d 583, 586, as authority for his contention that it is the Common Pleas Court and not the Probate Court that has the jurisdiction in this matter. The facts in that case are entirely different. There the articles of copartnership provided that upon the death of either partner his interest in the partnership belonged to the survivor. There the interest of the deceased partner passed by contract to the survivor and the administrator could claim no interest therein, unless partnership creditors were involved. The surviving partner sued in the Common Pleas Court to recover assets of the partnership from the administratrix. No question concerning the inventory and appraisement of the partnership was involved. In that case doubt arose as to the jurisdiction of the Common Pleas Court by reason of the provisions of Section 8085 et seq., General Code, conferring jurisdiction upon the Probate Court. The court, after citing Section 8085 and 8092, General Code, stated that it would not attempt to construe the latter section beyond the necessities of the specific facts of that case. That court merely stated that it seemed to them that the Common Pleas Court had jurisdiction to enforce the contract. It further stated that ‘under such circumstances the particular statutory proceedings in the probate court would be inapplicable and the partnership affairs would ‘be settle and disposed of in accordance with the provisions of such articles or will.’'