the surviving partner. Section 37 provides that "unless otherwise agreed, the partners who have not wrongfully dissolved the partnership [and this would include the surviving partner or partners] or the legal representative of the last surviving partner, not bankrupt, has the right to wind up the partnership affairs; provided, however, that any partner, his legal representative or his assignee, upon cause shown, may obtain winding up by the court." The partnership is "dissolved" though not "terminated" by the death of any partner; 31 "except so far as may be necessary to wind up partnership affairs or to complete transactions begun but not then finished, dissolution terminates all authority of any partner to act for the partnership" in the situations enumerated; 32 "after dissolution a partner can bind the partnership (except as provided in paragraph 3), (a) by any act appropriate for winding up partnership affairs or completing transactions unfinished at dissolution, (b) by any transaction which would bind the partnership if dissolution had not taken place" provided notice had not been given when and as required.33 Nevertheless, it is believed that in binding "the partnership," after the death of one partner, under this provision the estate of the deceased partner or his legal representa- . tive is not included. On the other hand, where there are several survivors it would seem that each was the agent for all and could bind them personally in winding up the partnership affairs or completing transactions unfinished at the time of the dissolution.

"The dissolution of the partnership does not of itself discharge the existing liability of any partner." 34 "The individual property of a deceased partner shall be liable for all obligations of the partnership incurred while he was a partner, but subject to the prior payment of his separate debts." 35

§ 407. Continuing business under provisions of will.-The authority of the surviving partners is to close up and not to continue the partnership affairs, and they have therefore no

31 Sec. 30. 32 Sec. 33. 33 Sec. 35.

34 Sec. 36 (1).
35 Sec. 36 (4).

right to make new contracts, engage in fresh enterprises or carry on the partnership business for any longer period than is reasonably necessary to enable the affairs to be closed up without unnecessary loss or injury. If, in violation of their duty, they do continue the business, they may be restrained by injunction, or they may be held accountable for interest or profits and will be charged personally with the losses.36

The deceased partner may, however, by his will authorize the business to be carried on for a period limited therein, either by the survivors alone or by the survivors and his executors jointly, and the business may be continued in pursuance of such a provision.37 In such a case, unless there is something

in the will to indicate a contrary purpose, it will be presumed that the deceased intended to subject to the hazard of the business only the capital already embarked in it, and not the general residue of his estate; 38 but under clear and appropriate provisions the entire estate may be involved.39

§ 408. Continuing in pursuance of partnership articles.Provisions for continuing the business by the survivor are frequently found in the partnership articles. They may be permissive only or contractually obligatory. They may also define the term and conditions. If they do not, permissive provisions, at least, are usually held to apply only to the assets of the deceased already embarked in the business and not to the general residue of his estate.40 Contractually obligatory provisions are, of course,

(1904), 209 Pa. 419, 58 Atl. 805; Avery v. Myers (1882), 60 Miss. 367.

If he actually participates as a partner he will be personally liable for the debts. Citizens Mut. Ins. Co. v. Ligon (1881), 59 Miss. 305; Alsop v. Mather (1831), 8 Conn. 584, 21 Am. Dec. 703. So if the business is continued by agreement with him, City Nat. Bank v. Stone (1902), 131 Mich. 588, 92 N. W. 99; but even in such cases he would not be personally liable for debts contracted in the deceased partner's lifetime: Mattison V. Farnham (1890), 44 Minn. 95, 46 N. W. 347. When he thus participates by direction of the will, he may be reimbursed out of the assets properly devoted to the business. Wild v. Davenport, supra.

38 See Smith v. Ayer (1879), 101 U. S. 320, 25 L. ed. 955; Jones v. Walker (1880), 103 U. S. 444, 26 L. ed. 404, Mechem's Cas. 509; Burwell v. Mandeville (1844), 2 How. (43 U. S.) 560, 11 L. ed. 378; Pitkin v. Pitkin (1829), 7 Conn. 307,

18 Am. Dec. 111; Brasfield v. French (1882), 59 Miss. 632; Furst v. Armstrong (1902), 202 Pa. 348, 51 Atl. 996, 90 Am. St. R. 653; Davis v. Christian (1859), 15 Gratt. (Va.) 11; Ex parte Garland (1803), 10 Ves. 110; Ex parte Richardson (1818), 3 Madd. 138.

As to the application of payments made where the business is continued after the dissolution, see Wiesenfeld v. Byrd (1881), 17 S. Car. 106; Tootle v. Jenkins (1891), 82 Tex. 29, 17 S. W. 519; Stanwood v. Owen (1859), 80 Mass. (14 Gray) 195. 39 See Ferris V. Van Ingen (1899), 110 Ga. 102, 34 S. E. 347. 40 See Willis v. Sharp (1889), 113 N. Y. 586, 21 N. E. 705, 4 L. R. A. 493; Stewart v. Robinson (1889), 115 N. Y. 328, 22 N. E. 160, 35 L. R. A. 410; Vincent V. Martin (1885), 79 Ala. 540. Compare Shaw, et al, Appellants (1889), 81 Me. 207, 16 Atl. 662. Such provisions must be clear and unequivocal in order to justify continuance: Alexander v. Lewis (1877), 47 Tex. 481. In Stanwood v. Owen (1859), 80

to be construed according to their terms, but, in a number of cases, they have been held to involve the entire estate.41

Provisions of the latter sort could not ordinarily be executed if there were existing general creditors of the deceased who insisted upon immediately subjecting the residue of the estate to the payment of their claims.42

§ 409. Continuing in pursuance of personal agreements.— Where there is no provision either in the will of the deceased partner or in the partnership articles, the persons who are entitled to the deceased partner's share may consent to a continuance of the business on such terms as they may deem advisable; and such consent of competent parties will, at least, estop them from complaining of any proceeding covered by it,43 and by their contract they may bind themselves to contribute to the payment of debts and expenses on such terms as they see fit to make.

Such an obligation may undoubtedly arise by implication, as where, without express arrangements, there is yet a tacit acquiescence in the fact.

§ 410. Provisions that survivor shall acquire interest of deceased. Partnership articles not infrequently provide that, in case of the death of a partner, his interest shall or may be purchased by the survivor upon terms or in a manner stated. Such provisions are entirely lawful, and often highly desirable. Where they possess the requisite characteristics of certainty and consideration, such agreements are capable of being specifically en

Mass. (14 Gray) 195, it is held that subsequent creditors may not prove their claims directly against the estate of the deceased partner in competition with his individual creditors.

41 See Blodgett v. American National Bank (1881), 49 Conn. 9, where the court speaks of the provision as conferring a power coupled with an interest, and therefore irre

vocable by death; Laughlin v. Lorenz (1864), 48 Pa. 275, 86 Am. Dec. 592. (See comments on this case in Wilcox v. Derickson (1895), 168 Pa. 331, 337, 31 Atl. 1080.)

42 See Stanwood v. Owen, supra; Dowse v. Gorton [1891], App. Cas. 190.

43 See Robinson V. Simmons, supra; Poole v. Munday (1869), 103 Mass. 174.

forced.44 They may also be so framed as to be practically automatically operative, at least as between the parties.45

In a late case an agreement that the survivor should have the entire interest without paying anything for it, and that the interest of any partner should cease on his death, was denied enforcement.46

§ 411. Liability of estate of deceased partner for existing debts. Although, as has been seen,47 causes of action against the firm, at law, survive against the surviving partners only, the estate of the deceased partner is not thereby released from all liability on existing debts to the partnership creditors.48

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