Fleming v. Fleming

Gaynor, J.

*74 1. Partnership : the relation: partnership (?) or joint tenancy (?) *73 This action is in equity, brought by Anna B. Fleming, as the surviving widow of Charles Fleming, against *74 his surviving brothers, as individuals, who, named in the order of seniority, are Robert J.-, John A., and Stan-hope Fleming; and against Fleming Brothers, ah alleged partnership, composed of deceased and the three brothers above named; and against John A. Fleming', as administrator of the estate of Charles Fleming.

The plaintiff’s claim is that her husband, Charles, died seized and possessed of an interest in certain property now in the possession of and held by these defendants; that they refuse to recognize her right to a distributive share therein, and claim to own the same, as against the right asserted by her.

The original purpose of the action was to have ascertained and set aside to her, as the surviving widow of Charles, her distributive share in so much of the property as her husband died seized or possessed of. She claims that he died seized and possessed of an interest in the property now in the hands of these defendants, or some of them.

Here the issues are narrowed to the ascertainment of whether or not plaintiff’s husband, Charles, died seized or possessed of any interest in the property held by these defendants, or some of them. If it be determined that he had an interest in the property at the time he died, then she is entitled to a distributive share therein, and her claim' must be recognized and enforced; but the amount of her interest is not the subject of investigation at this time; for, by agreement of parties, this is left for future consideration and determination by the nisi prius court. The determination of the question here involves only the proper construction of the three writings on which defendants rely to defeat her claim, to which specific reference will be made hereafter.

It appears that, up to and at the time Charles died, Fleming Brothers, including the deceased, Charles, owned quite a large estate, consisting of both real and personal property. The question to be determined is whether this property was owned by these four brothers as joint tenants, with a right of survivor-ship, or whether it was owned by them as partners. It is the claim of the defendants- that all the property in controversy, prior to and at the time of Charles’s death, was held by these *75 four brothers as joint tenants, to which the right of survivor-ship attached; that, upon the death of Charles, all his interest in the property ceased, and this by virtue of the terms of certain written instruments under which the business was conducted and the property acquired and held at the time Charles died.

Charles Fleming, the deceased, was married to the plaintiff on the 2d day of January, 1880, and died in Polk County, January 15, 1916.

The first instrument on'which the defendants rely to cut off this widow from a right to share in the accumulations of all these years of her husband’s faithful service and toilsome labor, represented by the property in question, was made on the 14th day of December, 1896, and at a time when but a small portion of the accumulated fortune which is the subject of tfiis litigation had come into existence. It reads as follows:

“Know all men by these presents, that we, Kobert J. Fleming, Charles Fleming, John A. Fleming, and Stanhope Fleming, of the city of Des Moines, state of Iowa, in order to provide for the future uninterrupted prosecution of the business of life insurance in which we are now or may be hereafter engaged and mutually associated, and to fix and determine the interests of each therein, hereby mutually agree, and bind ourselves, our heirs, executors, administrators or survivors and all other persons, that, each of the parties to this stipulation and agreement, shall have only such share of, and interest in the profits, earnings and income of the business of life insurance in which we are or shall be jointly engaged, as shall be actually received by each or paid upon the order of each, with the consent of the others, from the income of said business. And such amount so paid shall fully represent the share and interest of each of the •parties hereto, at any time while we the undersigned shall be associated together in said business or thereafter. Upon the death or withdrawal of any party hereto, all his interest in said business shall thereupon cease and determine and at no time shall any accounting be made or required to be made by any party hereto, his representatives, executors, heirs or survivors, or any other person claiming under him, or to any person officer or representative, upon any basis of labor performed or *76 money received on account of said business by any of the parties hereto or otherwise. And it is distinctly understood and agreed between the parties hereto that they, nor any of them have, or can have any property rights, or money interests in said business other than that herein specified and defined, and any sum of money paid to or for any party hereto shall be in full of the interest of said party in said business. ’ ’

No doubt deeming that this instrument did not fully express the purpose and intent of the parties, and might not be construed to effectuate their purpose and intent, they made a second instrument on the 23d day of January, 1897, as follows:

“Know all men by these presents that we, Robert J. Fleming, Charles Fleming, John A. Fleming and Stanhope Fleming of the city of Des Moines, Iowa, in view of our past association in, and the manner of the conduct of our business without the usual and ordinary incidents of a partnership, and to more effectually define and determine our individual interests in said business in the future, as between ourselves and in relation to all 'other persons, and to provide for the future uninterrupted prosecution of said business in which we are now engaged, or may be hereafter associated, hereby mutually agree and bind ourselves, our heirs, executors, administrators, survivors, and all other persons as follows: That in consideration of the services of each of us rendered, or hereafter to be rendered in the business of life insurance, of the income to be derived therefrom and of the mutual stipulations herein contained, each of the parties to this agreement has, and hereafter shall have, only such share of, and interest in the profits, earnings, .renewals due or to become due under any and all contracts of insurance, or commissions thereon, to whomsoever nominally payable in the business of life insurance in which we are now or any of us shall hereafter be jointly engaged, as shall be actually received' by each, or shall be paid upon the order of each with the consent of the others, from' the general funds or income of said business; and any sum or amount so paid shall fully represent the share and interest of each of the parties hereto at any time while any of the undersigned shall be associated together in said business or thereafter. It is further agreed that upon the death or withdrawal of any party hereto, all his interest in said busi *77 ness, and in tlie assets thereof, shall thereupon cease and determine; and at no time shall any accounting be made, or required to any person, or any party hereto, or their heirs, executors, administrators, survivors or representatives. It is further stipulated and agreed that any and all contract rights, and all interest in renewals of policies of insurance in the Mutual Life Insurance Company of New York, due or to become due since January, 1893, all commissions, earned or hereafter to be earned, and all bonuses, allowed, payable or to become payable in any manner, whether payable to or standing in the name of Robert J. Fleming or any other of the parties to this agreement, are hereby assigned and transferred to, for the mutual benefit of the parties hereto, to be used, applied and disposed of in the manner only as herein agreed and provided for. It being the intention of all the parties to this agreement, and they hereby declare that they, nor any of them have, or can have any property rights or money interest in said business other than that herein specified and defined, so long as any of them shall be associated together in the business of life insurance. ’ ’

Under these two instruments, they continued their labors and prosecution of the business in which they were engaged and mutually associated, and further property was accumulated through the joint efforts, and a large estate created. However, on the 7th day of January, 1911, feeling that they had not yet fully expressed in writing their relationship to each other and to the estate that had been and was being accumulated, they made a third writing, as follows:

“Whereas, the undersigned, Robert J. Fleming, Charles Fleming, John A. Fleming and Stanhope Fleming are engaged in the life insurance business in the states of Iowa, Nebraska and Wyoming under a contract with the Massachusetts Mutual Life Insurance Company; and,

“Whereas, each of the undersigned is the owner of one fourth of the stock of a corporation organized under the laws of the state of Iowa known as Fleming Brothers, Incorporated; and

“Whereas, the undersigned also are the owners of certain *78 real estate and other property in which each of them is interested; and,

“Whereas, the undersigned expect to acquire additional property hereafter; and,

“Whereas, the said property now held and owned by the undersigned has been acquired by them with the understanding that it shall be disposed of as hereinafter set out;

“Now, therefore, in consideration of the premises and one dollar in hand paid by each of the undersigned to each of the others whose names are signed hereto;

‘ ‘ This agreement made and entered into by and between the said Robert J. Fleming, Charles Fleming, John A. Fleming and Stanhope Fleming on the 17th day of January, A. D. 1911, will witness:

“1st. That the partnership between the undersigned is with the express and distinct understanding and agreement that all of the property heretofore acquired by the undersigned has been acquired as the results of the said partnership, and that said property now belongs to the said partnership, including all proceeds of said insurance business with the renewals to which the parties hereto may be entitled thereon,

“2d. That upon the death of either one of the undersigned, the property then owned by the said partnership, including all property standing in the names of the individual partners which embraces said stock in Fleming Brothers, Incorporated, shall be and become the property of the surviving brothers of the said partnership; and that what said decedent has theretofore withdrawn from said partnership shall constitute his sole and entire interest therein, and the sole and entire interest of his estate therein.

“The premiums upon all insurance carried by the undersigned, whether life or accident, (except Policy No. 741051 in the Mutual Life Insurance .Company of New York, upon the life of Robert J. Fleming, payable to Emma D. Fleming, his wife, which policy is not a part of said partnership property) have been paid by the said partnership, and the said partnership is entitled to the proceeds of all such insurance except the policy above referred to payable to Emma D. Fleming.

“3d. This contract covers not only the property now *79 owned, but also property hereafter acquired, and all hereafter acquired property, including the proceeds of life insurance, whether standing in the name of the said individuals, or either of them, or in the firm name, is understood to be firm property, unless there be an express agreement to the contrary.

“Executed in quadruplicate.”

In this third instrument, the parties to the first two instruments have undertaken to define the relationship existing between them, and to more clearly state the relationship they sustained to the property, and to define more clearly what they meant when they said in the first two contracts, ‘ ‘ In order to provide for the future uninterrupted prosecution of the business of life insurance, in which we are now or may be hereafter engaged and mutually associated.” This last quoted instrument is the last expression of these parties touching the subject-matter of all three contracts; and they themselves have therein stated, in words that have definite and legal signification, what they understood the relationship was, under which they were operating.

We look to what is written in these three instruments, taken as one instrument, to find the thought that lies back of the writing, — the purpose and intent of the parties in the making of the writing, — and to find the legal status that the writings create. That these parties had a purpose and an intent to accomplish something touching their rights, duties, and obligations to each other in the making of the instruments, and a purpose to fix the rights of each in the property accumulated and to be accumulated, must be assumed. Within these instruments the height, depth, width, and length of that purpose must be found. The thought of the brothers could not have been that the title to the property acquired, as it came into existence, should vest in no one, except the portion taken and appropriated by each to his immediate needs. The title to property that can be the subject of ownership, we must assume, vests in someone, whether it be an individual, individuals, or a legal entity. This property, when it came into existence, vested in these brothers. They became vested with the title as joint tenants, or they became vested with the title as tenants in common, or they became vested with the title as a copartnership. The character of the title held by these defendants is the subject of our investigation, *80 and- controls the rights of this plaintiff. Within the cover of these writings must be found all that these men had in mind touching their personal relationship, and their relationship to and interest in the property accumulated by the joint efforts. As the third writing is the last expression of the minds of all these parties touching their relationship to each other and to the property, it might well be considered the controlling expression, determinative of their relationship and their rights in and to the property at the time Charles died. The property in question came into existence only by the joint efforts of these men, working hand in hand, shoulder to shoulder, in a common enterprise, with a common purpose. That purpose was the accumulation of property; the building up of a fortune. During the years that have passed by, each has labored faithfully; and through his labor, joined with the labor of his brothers, the subject-matter of this controversy has been created. What they have said in these contracts and what they have-done in execution of the purpose therein expressed, constitute the only expression of the thought and purpose to which our minds are directed. These writings,, considered together, show the mutual understanding and purpose of the parties.

2. Joint tenancy: commercial enterprise. We need not here enter into any discussion of the origin and purpose of a joint tenancy. Its origin and character were feudal. It was of English origin, and highly favored, at first, for reasons that were feudal. But whatever causes may have led to the origin of such an estate or commended it to the minds of the great jurists of that time, it unquestionably has grown into much disfavor in this country and in .England. Some states have denied the existence of it in any except real property. See Hart v. Hart, 201 Mich. 207 (167 N. W. 337). Some have abolished it altogether, and some require strict proof. It has been condemned because it imperils the future of those whom the law assumes to guard and protect. Under our law, the wife, the weaker vessel, the one who maintains the home and rears the children, is entitled to have provision made for her, if, peradventure, death robs her of the one legally and morally pledged to support and maintain her. She is entitled to share in such of his estate as by his efforts he accumulates and leaves at his death. • The husband *81 cannot take this from her by any testamentary disposition. He cannot contract with her for its release. In "view of the legal status of the wife, in view of the relationship which she sustains to her husband, in view of those provisions of statute that protect and guard her interest during his life and after he is dead, it would seem to be against the policy of the law, expressed in the statutes, to permit men to legally get together and agree with each other that, upon their death, their wives and children shall receive no portion of the estate which they spent their lives in accumulating. It is a clear fraud on the marital rights of the wife. Many a wife has been a faithful helper in the building of great fortunes. Many a wife, by economy and self-denial, has been a strong factor in the building. Yet we are asked to say that this wife, who has done faithful service and practiced self-denial for 36 years, that something might be left for declining years, must be left penniless. These are some of the features that bring this kind of tenancy into disfavor, and show that it cannot be made to defeat a wife’s claim under the statute.

The essential elements of an estate in joint tenancy are that it be held by two or more 'jointly, with a clear right in all to share in the enjoyment of the thing during their lives. There are four requisites: The tenants must have one and the same interest. The interest must accrue by one and the same conveyance, except as modified by the statute of uses. They must commence at one and the same time, and the property must be held by one and the same undivided possession. If such an estate be recognized, and the right of parties to create it, with all its unnatural consequences, the consequences that legally flow from it must be permitted to flow, no matter what this court may think of the justice or injustice of it, and though it leave this wife to the cold charity of an unsympathetic world. In none of the writings did these brothers bind themselves to make any provision for her. If she receive aught from them, it comes to her, not as a matter of right, but as a matter of grace.

It is time that, under the common law, an estate may be created and held in joint tenancy. The estate is joined in the number of persons interested. No matter what the number of parties interested may be, the tenants are regarded as one individual. The right that each has in the joint estate continues *82 during bis life, and terminates with bis death. The survivors, still considered as one person, hold the estate by right of sur-vivorship. The last survivor takes the whole estate, and then it becomes, for the first time, an estate of inheritance, and passes to his heirs or legal representatives. While the tenants are considered as one person, and the estate joint, yet each of the tenants has a moiety interest. Or, in other words, while each joint tenant is regarded as having the whole of the estate, his interest in the estate may be put to an end or severed during his life. Bach joint tenant, during his life, may dispose of his share by the usual modes of conveyance; but if he die without making such disposition, the title to the thing which is the subject of the joint tenancy remains in the survivor or survivors, free from the share or moiety of the one who dies. At common law, the sale by a joint tenant of his share during his life was regarded as a cutting-off of that share from the joint tenancy, and that share then was discharged from the incidents of joint tenancy, and passed to the grantee, to be held as a tenancy in common. But unless some disposition is made by one of the joint tenants of his interest, and the estate is permitted to remain as a joint tenancy until death, it remains by the right of survivor-ship in the other tenants. So, as between themselves, éach tenant has a distinct right, but the rights of all the tenants are equal in every respect. So it is said that a joint tenancy is distinguished by unity of possession, unity of interest, and unity of title. It was the purpose of the feudal system to keep the title in one person; but this seems to have been touching lands only. In modern times, however, it'has been recognized as a right in personal property as well, but never so recognized in this state, or generally, as applying to commercial enterprises.

.Considering the foundation upon which the doctrine of joint tenancy rests, it is the opinion of this court that it does not apply to commercial enterprises of this kind, and that no joint tenancy can arise out of a commercial enterprise, such as we have here before us in this case. It is inconsistent with the very foundation principle upon which joint tenancy exists or can exist.

Analyzing these writings, we find that, at the time the first instrument was made, the parties had in mind that they were *83 associated together in some way not expressed in this writing, and engaged in a business from which mutual profit would arise, and out of which property of value would come; that each had, as long as he lived, a right to use a portion of the income and profits of the business in which they were so mutually associated; that, whenever his needs required, and to that extent only, he had a right to take from the earnings and income of the business such sum as he needed, upon the order or with the consent of the others. This provision was intended to cover the. immediate needs of each of the parties so associated and engaged in the business. Its purpose evidently was to forestall any extravagant tendencies on the part of any of the brothers, and to conserve the interests and profits of the business, to the end that the 'brisiness might not suffer from extravagance, and might be continued uninterrupted. To say that, when one of these parties took from the profits of the concern any sum of money, however small, to meet his immediate needs, the same, when 'taken, measured his interest in all the accumulations of the past years, could not have been intended to be literally construed.

If the parties were, in fact and in law, joint tenants, then each had a right to enjoy the income of the estate; and the fact that one of the tenants appropriated a portion of the income to his own use could not have the effect of destroying his interest in the subject-matter of the tenancy. The idea of joint tenancy is that each tenant has a right to an equal enjoyment of the thing which is the subject-matter of the tenancy. If the receiving of any portion of the income or the profits of the estate had the effect of destroying the interest of each in the subject-matter of the tenancy, then, upon the appropriation of any of the profits by the tenants, or any of them, the joint tenancy would cease. The provision of the contract above referred to must have been intended as limiting the right to enjoy the income and profits of the business, and not as taking his right in the subject-matter of the tenancy. His right to take was measured by his needs.. What he took was a declaration, by the taking, of his then needs, and measured his right, at that time, to take to his personal use the income and profits. It does not mean that it measured or could measure his interest in the property accumulated by the joint efforts of the parties, or that the *84 sum of money received determined bis interest in the property.

The second contract, though changed in wording, expresses practically the same thought, with the added purpose to transfer to the entity, whatever it is, all rights of Robert J., under his contract with the Mutual Life Insurance Company of New York.

It will be noted that, in the first two writings, no direct provision is made for the vesting of the title to accumulated property in any designated entity or person. It is now assumed by these defendants that it vested in the brothers as joint tenants. No estate in the tangible property that accumulated as a result of the business enterprise is by express provision vested in any person, persons, or entity. We turn, therefore, to the third writing, for further light as to the purpose and intent of these parties and the status created by the preceding writings.

It appears that, between the time of the making of the second contract and this third contract, Fleming Brothers had incorporated, or a corporation was created, known as Fleming Brothers, Incorporated. This corporation issued to each of the brothers stock in equal parts, we take it, and each undertook to assign his stock by writing his name on the back thereof, without naming the assignee, and deposited it in a receptacle which it is claimed was under the control of all four of the brothers. This third contract makes plain what is wanting in the other contracts, and says that they were associated together as a partnership, and that the partnership is with the express and distinct understanding and agreement that all the property heretofore acquired by the undersigned had been acquired as the result of said partnership, and that said property now belongs to said partnership. Reading the previous writings in the light of the revelations made in the third writing, it is not as difficult to understand and to give legal force and efficacy to what is therein said. We take it that these four brothers organized a partnership, with the understanding that the business carried on by the partnership should remain intact, and that the future of the business should be uninterrupted in its prosecution; that the title to the earnings and income of the business — the accumulated assets — should vest in the partnership; that each party should have a right to take, with the consent of the others, so much of the earnings of the partnership as his needs demanded, *85 be this great or small; that he should never afterwards be called on to account to the partnership therefor. Their labors were all in the interest of the partnership. The only source from which a livelihood could come was through the earnings and income of the partnership for which they labored. They evidently had confidence in each other; confidence that each would labor to his fullest extent in the-interest of a common enterprise, and that each would be frugal, and take no more from the earnings and profits of the partnership than was necessary to meet his personal needs; and so the restriction was made as it appears in the first and second contracts,- — in fact, in all the contracts. Bach, having confidence in the integrity of the .other, agreed that no accounting should be had of their labor: that is, they would assume that the labor of each equaled the labor of the other in the interests of the partnership. The desire was to keep the partnership a going concern, and that there should be no interruption in the prosecution of the business; that no one should be permitted to draw from the company, for his personal use or otherwise, any sum of money that might tend to cripple the partnership in the prosecution of the business for which it was created. After they had organized the corporation, an aliquot part of the corporate stock was issued to each of the brothers. Bach brother undertook to assign the stock issued to him. The assignment was made in blank; but we find that it was intended to be assigned to Fleming Brothers, a partnership, though it was not named as assignee. It is further said in the third writing that it is made with the understanding that all the profits heretofore acquired by said partnership have been acquired as the result of said partnership, and that said property now belongs to said partnership, including all property of said insurance business, with the renewals to which the parties hereto may be entitled thereon. And we have them saying in this third writing:

“We are engaged as partners in the life insurance business, mutually associated together as partners, and as such we desire to provide for the future uninterruption of the business in which the partnership is engaged.”

But it is said that the fact that they called themselves partners, or that they were there engaged in a common enterprise *86 or business, is not controlling; that there is nothing in a name; that the relationship must be determined from the entire writing; that the writing does not disclose all elements that are essential to constitute a partnership; that a partnershij.) is a contract, and the contract determines the relationship of the parties to each other, and whether a partnership exists; that the mere fact that they, in this third writing, say many times that they are partners, that a partnership exists, that the property is held by a partnership, does not determine their relationship to the property, or their interest in the property, or the character of the association by which their interests are united.

A slight history of the origin of partnership will not be out. of place at this time. Originally, it was founded on confidence, independent of any contractual relationship. Because of the fact that, in the early days, families followed one occupation, these partnerships usually were found to exist among relatives. Though founded in confidence in the early days, in modern times it was recognized as. a contractual relationship. It grew out of the necessities of trade, but confidential relationship was retained in the modern law. At the time the law courts first gave cognizance to what is known as partnership relationship, they were familiar with tenancies in common and joint tenancies. However, under joint and common 'tenancies, the co-owners sustained no confidential relationships to each other,— at least, not such as is found in modern partnerships; and the right of agency did not exist among the joint co-owners. After passing through many stages of formation, the law came to regard partnership as an entity, something separate and distinct from the individuals, and in some respects, much the same, as a corporation is separate and distinct from its stockholders. At. common law, a partnership was nothing more than an association of individuals. A firm was recognized as a short form of expression to designate partners collectively. The early decisions touching partnership depend a great deal on the viewpoint of the particular judge, — whether he had a mercantile conception or a common-law conception of a partnership; so that the courts have sometimes reached different conclusions, although the facts upon which they based their conclusions were substantially the same. Originally, there were different theories *87 of partnership. One was that it was a separate entity, like a corporation; the other, that it was a. mere association of natural persons. Some consider it a status something like marriage. ¥e find, however, Chancellor Kent defining it thus (3 Kent’s ■Commentaries 23):

“A contract of two or more persons, to place their money, effects, labor, and skill, or some, or all of them, in lawful commerce or business, and to divide the profit, and bear the loss, in certain proportions.”

Other writers define it as a combination of two or more persons of capital or labor or skill, for the purpose of business for their common benefit. Gilmore on Partnership, on pages 1 to 6, defines it thus:

“Partnership is a relation existing by virtue of a contract, express or implied, between persons carrying on a business owned in common, with a view of profit to be shared by them. ’ ’

It is defined in the English Partnership Act of 1890, 53 and 54 Victorian, Chapter 39, Paragraph 1, as “the relation which subsists between persons carrying on a business in common, with a view of profit.”

Partnership implies that there is more than one person interested in it, and there is implied a mutual consent to the association; but that is not controlling, since there may be organizations, by mutual consent, which are not partnerships, such as churches. A partnership, in its true sense, is formed for the purpose of trade or business, and the profits realized from the business must be the property of the persons associated, if they are to be treated as partners. Missouri Bottlers’ Assn. v. Fennerty, 81 Mo. App. 525; Burt v. Lathrop, 52 Mich. 106.

3. Partnership: the relation: implied agreement to share losses. As between the parties, the true test as to whether or not they are associated a$ partners is the intention with which they have entered into the relation. It is the legal intent or manifest intent of the parties that determines whether a partnership exists. In determining whether the parties to a contract intended to become partners, the court will take into consideration the whole situation existing at the time the agreement was made, and all the circumstances surrounding the transaction, as well as the subsequent admissions of the parties. That it is not denominated a part *88 nership in the contract is not fatal. Where the agreement contains all the elements necessary to create a partnership, then the intention of the parties is clear, and none of the tests which are applied to determine whether a partnership exists are needed. But where the contract contains only part of the elements of a true partnership, and it becomes important to ascertain the intent of the parties, legal tests may be applied. It follows that, where persons enter into an agreement to engage in a joint enterprise, and agree to share the profits, a presumption arises that they intend to be partners, as between themselves. It is only made stronger by proof of an express agreement to share profits and losses. Where there is an agreement to engage in a business for the common good of all, and each agrees to devote his entire time to the business, and each is to share in the profits of the business, it is necessarily implied that each must share in the losses of the business; and.especially may it be implied when, as in this case, each of the parties has agreed to put all his property, all his labor, all his time, and all his energies into the business. It may then be assumed that he subjects himself, by so doing, and agrees to subject himself, to all the losses which flow from the enterprise; for he has staked his all upon the cast, and he must stand the hazard of the die. So it follows that, though we find in this contract no express agreement to share losses, the wording of the contract and the character of the business are such that it is inevitable that each must have intended to share the losses.

4. Descent and distribution: surviving spouse: surviv-orship in partnership property. It must be borne in mind that the right of survivorship is only an incident to joint tenancy. It follows as a legal consequence from the creation of the joint tenancy. The joint tenancy, when created, vests in. each of the tenants a common right in the property, which does not survive his death, unless he becomes the last survivor of all the tenants. Then, for the first time, does that which before consisted, in a practical sense, of a life estate in the property, become vested as an^ estate of inheritance. In a legal sense, his death does not transfer the rights that he possessed in the property to the surviving tenants. Death does not enlarge or change the estate. Death terminates his interest in the estate. It is rather a falling away of the *89 tenant from the estate than the passing of the estate to others.' It remains with the surviving tenants jointly; while in a partnership, the partner is vested with an estate that survives his , death. He has always an inheritable estate, so long as he lives; and on his death, that interest passes to his legal representatives ; so that, in a partnership, when one partner dies, his legal representatives become vested with whatever interest he had in the partnership, and Ms wife to her distributive share. He dies, then, possessed of an estate that passes to his legal representatives. His wife’s share cannot be affected by any testamentary disposition made by the husband. It can be affected by no disposition made by the husband which must take effect after his death, and not effectual during his lifetime. So it follows that, in this property, the deceased had an inheritable interest. On his death, it passed to his legal representatives, and his wife became vested with her distributive share, which must be recognized and enforced.

We find, therefore, that a partnership existed between these parties. The provision, therefore, in the contract that, upon the death of any member, his interest in the partnership property should pass to his brother partners, is an attempt to make a testamentary disposition of the interest of each partner. A fair consideration of all these instruments shows that they were not understood as creating a joint tenancy. It fairly shows that all the profilers understood that they were associated together as partners, and that a partnership existed. An attempt to create survivorship among partners is an attempt to make a testamentary disposition of the dying partner’s property, or his interest in the partnership property, in favor of the surviving partners, to take effect after his death.

We are satisfied with the decree of the district court, and its judgment is affirmed. — Affirmed.

Ladd, C. J., Weaver, EvaNS, PrestoN, and SteveNS, JJ., concur.