For the benefit of commerce, there is not any right of survivorship among merchants.
Right of survivorship is where two persons being jointly interested in property, one of them dies, in which case the share of the one dying accrues to the survivor.
In ordinary cases of joint contractors or joint tenants, all of them whilst living have a joint interest in, and right of action upon, the contract ; but if one die, the right of action vests in the survivor, who alone can sue. So, if a bond be made to three persons to secure the payment of a sum of money to one of them, who afterwards dies, the survivors, though they have no interest in the money, are the only parties entitled to sue for it. So, if all of several joint contractors die, the right of action vests in the executors or administrators of the last survivor. And where a sum of money in the funds stands in the name of two, and one of them dies, the survivor takes the whole at law, subject, however, to any equities there may be attached to it. So, if land be conveyed or devised to two as joint tenants, the survivor shall have the whole. Such joint tenancy may, however, be determined at the will of any of the parties during their joint lives by conveyance or other disposition of the interest of one or more of them ; for, to constitute a joint tenancy the accruing of the interest of the several joint tenants must be simultaneous, their titles being one and not several. The joint tenancy, however, cannot be severed by devise, for no devise can take effect living the devisor. The law is otherwise as to parceners ; that is, where lands descend to females only ; in which case, if they do not make partition, severally convey, or devise, which they may do, whilst living, their respective interests will descend to their respective heirs.
There is no such right of survivorship, however, amongst merchants in mercantile transactions ; and this is for the benefit of commerce ; but the share of a deceased partner in the partnership goods, chattels, and debts goes to his personal representatives, and are distributable amongst them in the same manner as they would have been in case of dissolution of the partnership inter vivos. The right of action, or legal interest, however, in the debts and other choses of action of the partnership, survives to the surviving partner, who alone is entitled at common law to sue upon all contracts made with the partnership during its existence ; only, however, for the joint benefit of himself and the representatives of his deceased partner, to whom he is accountable, in equity, for the share of the deceased partner. But the surviving partner has no jus disponendi of the partnership effects as against the personal representatives of the deceased partner, excepting for the purpose of paying partnership debts and liabilities. And this rule applies as well to real estate purchased by the partners for partnership purposes, with partnership assets, as to the ordinary personal chattels of the partnership, and which real estate is treated by a court of equity for the purpose of account and distribution amongst the personal representatives of the deceased partner as personal property, and so passes to them. It may be here observed that where the partnership business is carried on upon premises belonging to one of the partners, the others, upon dissolution of the partnership by his death or otherwise, have no right to continue in the occupation of the premises, unless under a special agreement for that purpose.
Co. Litt. 182, 243, 277, 280 ; 1 Inst. 164, 180, 188 ; 2 Brown. 99 ; Noy. Max. 711 ; 1 Buit. 115 ; Darby v. Darby, 3 Drew, 495 ; Buckley v. Barber, 20 L. J. 117, Ex. ; Crossfield v. Such, 22 L. J. 325, Ex. ; Fereday v. White- wick, 1 Russ. & M. 49 ; Phillips v. Phillips, 1 My. & K. 603 ; Crawshay r. Maule, 1 Swanst. 521; Taylor v. Taylor, 3 De G. M. & Q. 190; Rolls v. Yate, Yelv. 177 ; Benham v. Gray, 5 O. B. 141.