Cavert

— Cavert, the appellant, was the administrator of this estate. In 1852 Alderman and Cavert were mercantile partners under the firm of Alderman & Co., and *74 had been for some time previously. In 1852 it seems that Cavert sold out his interest to Alderman for five thousand dollars, payable at twelve months, with interest at three per cent, but it was expressly agreed that the name of Cavert should continue in the firm and the firm business go on under the old name. Shortly afterward Alderman died and Cavert took administration on his estate. He claims the right as the surviving partner to hold the assets and wind up the firm business, it being unsettled and debts due at the time of the death of the intestate. He also claims the right to retain this debt of five thousand dollars and interest out of the assets. The claim was not presented to the probate judge for allowance.

The right of a surviving partner to retain possession of the firm property and settle up the firm business is a familiar rule of the common law, and the principle is incorporated into our own statute. It is said, however, that this rule has no application to this case, but is limited to an actual partnership in…