Rammelsberg et al. v. Mitchell and Lape. purchases of a considerable portion of the firm assets at Memphis and St. Louis had been made by the purchasing trustee without reference to this statute or any other. A considerable portion of the real estate is claimed not to have been firm assets in the sense of the statute. For the law distinguishing real from personal estate, see Parsons on Part. 363, 365, 371, 372, 373, 374, 376; Parsons on Cont. 149, 150. The real estate held by or for the firm was held as tenants in common, and could not be disposed of by the survivor or executor, but descended to the heirs of deceased, not being wanted or needed to pay debts or adjust equities between the partners. Green v. Graham, 5 Ohio, 264; Sumner v. Hampson, 8 Ohio, 328; Green v. Green, 1 Ohio, 535; Parsons on Part. 376; Miller v. Proctor & Anderson, 20 Ohio St. 449. The subsequent proceedings in chancery did not estop the heirs from asserting their rights: 1. Because they were taken by the trustees while still trustees, and open to the same objections as the sale; 2. The heirs, with the exception of Mrs. Shultz, were minors; 3. Mrs. Shultz was a feme covert; 4. None of the heirs were advised of their legal rights; 5. Neither the petition in the probate court nor either of the petitions in chancery stated the facts truly. Mulford v. Munich, 3 Stock. (N. J.) 16; Hoffman & Co. v. Cumberland & Co., 16 Md. 453; Butler v. Haskell, 1 Dess. 708; Reakets v. Montgomery, 15 Md. 46; West v. Sloan, 3 Jones' Eq. 46, 102. A. Taft & Sons, also for plaintiffs in error: I. Where one of two partners, under articles stipulating that in case of the death of either, the other should carry on the business for one year, for the common benefit, has died, leaving a will which appointed the surviving partner and another executors and trustees for his children, and the other executor has sold the interest of the deceased to the surviving partner, he remaining executor and trustee under the will, such sale was void as against the children Rammelsberg et al. v. Mitchell and Lape. and heirs of the deceased partner; and, on their applica tion, the survivor will be held to account for the assets, and for the profits he has made therefrom. Dutton v. Willner, 52 N. Y. 312; Riddle v. Roll, 24 Ohio St. 572, 579; Bain v. Brown, 56 N. Y. 285; Galloway v. Barr, 12 Ohio, 352; Parker v. McKenna, L. R. 10 Chy. App. 96; Keech v. Sandford, 3 Eq. Ca. Abr. 741; York Building Co. v. McKenzie, 8 Bro. Par. C. (4th ed.), Appendix, and 3 Paton, 378; Davou v. Fanning, 2 Johns. Ch. 252; Cumb. C. & T. Co. v. Sherman, 30 Barb. 553; Moore v. Moore, 5 N. Y. 276; Gardner v. Ogden, 22 N. Y. 327; Ringo v. Binns, 10 Pet. 267; Bain v. Brown, 56 N. Y. 285; Barrington v. Alexander, 6 Ohio St. 189; Welsh v. Perkins, 8 Ohio, 52; Armstrong v. Houston, Ib. 552; Menchill v. Dunlap, 10 Ohio, 120; Glass v. Greathouse, 20 Ohio, 516; Rodgers v. Rodgers, Hopkins' Ch. 515. II. In the sale to the surviving partner of a large and profitable establishment for the manufacture and sale of furniture, which had been founded and carried on by the firm for fifteen years with continuing prosperity, the goodwill should be estimated and paid for, and any sale made by the executors of the deceased partner to one of themselves, without taking its value into account, will be presumed to be unjust and fraudulent in fact, and will be set aside on the application of the children and heirs of the deceased partner who have not consented thereto. McDonald v. Richardson, 1 Gifford, 81; Smith v. Everett, 27 Beavan, 452, 455; Hammond v. Douglas, 5 Ves. 539; Crawshay v. Collins, 15 Ves. 227; Hall v. Burrows, 10 Jurist, U. S. 55; McGowan, etc. v. McGowan, 22 Ohio St. 370; Scott v. Rowland, 20 W. R. 508; S. C. 26 L. Times, U. S. 391; Shipwright v. Clements, 19 W. R. 599; 7 W. R. 365; Johnson, 174 (Eng.); 12 W. R. 289; 1 H. & M. 271; 18 W. R. Ch. Dig. 44; S. C. 39 L. J. Ch. 79; Labouchere v. Dawson, L. R. 13 Eq. 322; Wade v. Jenkins, 2 Giffard Ch. 512; Bell v. Ellis, 33 Cal. 620; Story on Part. 169, 173, sec. 99; 3 Atk. 114; 3 Dow. & Ry. 1, 228; 2 M. & S. 352; Johnson v. Hellebye, 2 De Gex, J. & S. 448; Wedderburn Rammelsberg et al. v. Mitchell and Lape. v. Wedderburn, 22 Beav. 104; Johnson v. Hellebey, 24 Beav. 65; Banks v. Gibson, 34, 568; Millersh v. Kean, 27 Beav. 241; 28 Beav. 455; Hall v. Burrows, 4 De Gex, J. & S. 150; 2 Lindley on Part. 846; Cook v. Collingridge, 1 Jac. 607 (4 Cond. Eng. Ch. 607); Robertson v. Quiddington, 28 Beav. 529; Lewis v. Langdon, 7 Simon, 421; Williams v. Wilson, 4 Sand. Ch. 379; Bradbury v. Dickens, 27 Ib. 53; Austin v. Boys, 2 De Gex & J. 626; Turner v. Major, 3 Gif. 442; Willett v. Blanford, 1 Hare, 271; Holden v. McMakin, 3 Pars. Eq. Cas. 270; McFarland v. Stewart, 2 Watts, 111; Musselman's App., 6 P. F. Smith, 81; Dougherty v. Van Nostrand, 1 Hoff. 68; Case v. Abeel, 1 Paige, 401; Marten v. Van Schaick, 4 Ib. 479; Barrow v. Barrow, 27 L. T. N. S. 431, 432. III. Such a sale can not be made valid by any order of the probate court under the "act regulating the duties of surviving partners," passed March 21, 1861 (58 Ohio L. 36), as that act is not applicable to a case where the survivor is also an executor of the deceased partner, and a trustee for his wife and children. For the rule in construing this act the court is referred to Smith v. People, 47 N. Y. 330; Cook v. Collingridge, Jac. 607 (4 Cond. Eng. Ch, 286); Featherstonaugh v. Fenwick, 17 Ves. 298; Tennant v. Trenchard, L. R., 4 Ch. Ap. 537. IV. That where such a sale has been made to the surviving partner, while holding the position of executor and trustee of the deceased partner's estate, no proceedings which he may procure in a court of equity, against the minor heirs of the deceased partners, or against an heir who was under the disability of coverture, can make such sale valid and binding upon them without their consent. Truly v. Mouzer, 5 H. 142; 2 Story Eq., sec. 887; Humphreys v. Leggett, 9 H. 313; Massie v. Mathews, 12 Ohio, 351; Long v. Mulford, 17 Ohio St. 484; Smith v. Kay, 7 H. L. Cas. 751; Tennant v. Trenchard, L. R., 4 Ch. Ap. 537; Greenlow v. King, 3 Beav. 49; Drake v. Hukill, 3 Russell, 428. Rammelsberg et al. v. Mitchell and Lape. Matthews, Ramsey & Matthews, for defendants in error. Whether the sale was made legally as well as fairly depends, in the first instance, upon the question whether the sale can be supported by the act of March 21, 1861 (S. & S. 508), regulating the duties of surviving partners. Before proceeding to the discussion of the meaning of this statute and its proper application, it will be necessary to consider and determine, as to certain points, what was the existing law prior to its passage. 1. As to the rights of a surviving partner to the good will: Martin v. Van Schaick, 4 Paige, 479; Crawshay v. Collins, 15 Ves. 224; Featherstonaugh v. Fenwick, 17 Ves. 309; Chissam v. Dewes, 5 Russ. 29; Kennedy v. Lee, 3 Mer. 441; Hammond v. Douglas, 5 Ves. 539; 3 Kent Com. 64; Lewis v. Langdon, 7 Sim. 421; Parsons Part. 263 and notes; Staats v. Howlett, 4 Denio, 559; Parsons Part. 444; Story Part., sec. 99. 2. As to the partnership real estate: Parsons Part. 366, 369, 372; Miller v. Proctor & Anderson, 20 Ohio St. 442. 3. As to the dealings between the survivor and the representatives of the deceased partner: Knox v. Gye, L. R., 5 H. L. 675; Chambers v. Howell, 11 Beav. 6; Vyse v. Foster, L. R., 8 Ch. Ap. 309; Wilson v. Greenwood, 1 Swanst. 483; Crawshay v. Maule, 1 Swanst. 529; Parsons Part. 446; Lindley Part. 869; Ex parte Garland, 10 Ves. 119; Ex parte Richardson, 1 Buck. 209; 2 Wms. Ex'rs, 1624; Id., pt. 3, b. 1, ch. 2, p. 851; Richardson v. Richardson, 9 Barr, 430; Miles v. Durnford, 2 De G. M. & G. 641; 2 Sim. N. S. 234; McDowell v. McDowell, 1 Bailey Ch. 324; Peake v. Ledges, 8 Hare, 313. We think the foregoing authorities sufficiently show that prior to the passage of the statute of March 21, 1861 : 1. A surviving partner and the executor of the deceased partner might, without the intervention of a court, make a valid agreement for the purchase by the former, at a fixed price, of the partnership assets, subject, of course, to impeachment, as in other cases, for fraud, collusion, undue advantage, misrepresentation, concealment, or mistake. Rammelsberg et al. v. Mitchell and Lape. 2. That where the surviving partner was also one of the executors of the deceased partner, a similar agreement, made under the sanction of a court, would be carried into effect by a decree conclusive on all interests. Willett v. Blanford, 1 Hare, 263; Case v. Abeel, 1 Paige Ch. 398. Such being the state of the law at the time of its enactment, the conclusion to be drawn in reference to the statute of March 21, 1861, is, that it was intended to bring within the supervision of the probate court every case of the conduct of the executor of a deceased partner, in his dealings with the survivor in respect to the partnership estates, which, before its enactment, fell within either of the above classes, and to fix the terms on which the surviving partner might be allowed to become the purchaser of the interest of the deceased partner, so as to furnish an effectual and summary jurisdiction competent to protect the rights and interests of both. The language of the act covers the case; no reason can be assigned to exclude it from its spirit and design. If it should be held not to apply to a case where the surviving partner was sole executor of the deceased partner, when resort must still be had to a court of general jurisdiction in equity, still the reason for the exclusion of that case would not apply here, where Mitchell was one of two executors, and, in the matter of the appraisement and in the proceedings in the probate court, was severed entirely, not only in name, but in fact, from the execution of the trust. Assuming, then, that the statute referred to governs the case, it follows that the sale carried the good-will and the real estate of the partnership. Two objections remain to be considered. The first is, that the inventory and appraisement was not such as the law contemplates, because it was in fact made before the proceedings were begun. If the appraisers were duly appointed by the court, it is difficult to see what objection reasonably exists to their adopting an inventory and appraisement, just made by themselves, if they return it under oath as their own at the |