The majority opinion seems to be based essentially upon the fact that the surviving partner, J.H. Brown, made no protest to the taking of the partnership cattle by the administrator of C.A. Brown, deceased, or else that he did not follow a proper remedy to prevent the taking thereof.
I think the facts in this case show clearly that the surviving partner was, at all times, apparently in every way known to him, protesting the taking of the partnership cattle. With reference to the facts pertinent to the issues in this case, it should be noted that at the time the administrator was appointed the surviving partner, J.H. Brown, was disabled and confined to his home part of the time by reason of a leg amputation; that the son of the surviving partner was looking after the cattle; that the administrator went to the pasture, where the partners had for a long time kept the cattle, and took them out of the actual possession of the son of the surviving partner; that the administrator admits that after he was appointed, he went to see J.H. Brown, and was advised by him that he did not want any of the cattle sold.
There is nothing in the record to show that any demand was made by the administrator on the surviving partner to settle the partnership affairs after the death of C.A. Brown. Of course, when C.A. Brown died, the right to possession of the partnership cattle immediately vested in the surviving partner to the exclusion of all others. Under section 11661, O. S. 1931, 54 Okla. St. Ann. § 54, the surviving partner was entitled to possession and duty bound to settle the partnership estate.
As soon as J.H. Brown, the surviving partner, was able, he brought an action in replevin for all of the cattle, to wit, 300 head. The partnership part of these 300 head of cattle had by this time increased to 102 head. It is true J.H. Brown brought the replevin action claiming to be the owner of not only the partnership cattle, but the other cattle as well, on the theory that he was the outright owner of all the cattle by reason of a bill of sale which he possessed, allegedly signed by C.A. Brown, his brother, during his lifetime. It is also true that in the replevin action he did not alternatively, or in any manner, plead ownership or right of possession of the partnership part of the entire herd by reason of the partnership relation. Before he filed his replevin action he *Page 24 filed an application with the county court on June 15, 1936, asking it to direct the administrator to deliver to him the entire herd. After the replevin action was determined by the district court, the surviving partner made another application to the county court; this time he asked the county court to order a division of the partnership cattle and to direct the administrator to deliver to him his share of the cattle. On March 30, 1937, the county court found it did not have jurisdiction to determine the matters and things alleged in the application of June 15, 1936, and January 5, 1937, and, therefore, denied both.
In connection with all these facts and circumstances it should be borne in mind that the administrator in his original inventory set forth the fact that the estate owned an undivided one-half interest in the 72 head of cattle and their increase. I feel that all of these facts and circumstances unmistakably indicate that the surviving partner, J.H. Brown, though he may have at times misconceived his remedy and may have protested improperly, was at all times attempting to assert not only his ownership, but his rights and statutory duties as surviving partner. This being true, the statement in the majority opinion with regard to the attitude of the surviving partner with reference to possession of the cattle, "they were turned over to him without protest," is incorrect. He was the outright owner of an undivided one-half interest in the partnership cattle; he had the right to possession of the partnership cattle; and it was his duty under the statutes of this state, as surviving partner, to administer the partnership estate. See section 11661, O. S. 1931, 54 Okla. St. Ann. § 54; sec. 1197, O. S. 1931, 58 Okla. St. Ann. § 255. The administrator of C.A. Brown had no authority as such to sell the partnership cattle; the county court was without authority to direct the sale of them; the acts of said administrator, as to the partnership cattle, were wrongful; and the trial court correctly held in this case, which is an accounting suit, that J.H. Brown was entitled to his portion of the market value of the partnership cattle.
The administrator and county court misconceived the manner in which they should have proceeded to require a settlement of the partnership affairs, if they thought the surviving partner was not performing his duty under the statutes. The procedure therefor is specifically provided by section 1197, O. S. 1931, 58 Okla. St. Ann. § 255. The administrator did not attempt in any manner to comply with or avail himself of such procedure. Compliance therewith would have fully protected the estate of the deceased partner.
Judgment of the trial court should be affirmed.