Blodgett v. American National Bank. included in the distribution of his estate, and all now remaining unsold in the hands of the bank were, up to October 10th, 1876, held by Roswell F. Blodgett as trustee for his widow and daughters, according to the terms of the will. The three notes were executed and the stocks pledged as collateral security for any paper of the firm of Blodgett & Clapp then held under discount by the bank, and any other paper of the firm which the bank might afterwards hold. under discount while the firm did business with the bank. The agreement that the notes should be given, and the stocks pledged, was made by parol between Rowland Swift acting for the bank, and Roswell F. Blodgett acting for the firm. None of the paper of the firm held by the bank October 10th, 1876, was then given up. As this paper matured some was renewed and some paid, but none now remains in the bank. Some, however, of the indebtedness due from the firm to the bank on October 10th, 1876, still remains unpaid, and is represented by renewal notes. The amount of this indebtedness is not ascertained. Rowland Swift has been connected with the bank as an officer from a date prior to 1863. He was well acquainted with Roswell Boldgett in his lifetime, and familiar with the business and condition of the firms of R. F. Blodgett & Co., and Blodgett & Clapp, and on the 10th of October, 1876, and before that time, well knew of the provisions of the will and articles of copartnership, and that the stocks so pledged belonged to the estate of Roswell Blodgett, and that all of them (except the twenty-four shares of Etna Insurance Company stock set to Roswell F. Blodgett) were then held by the latter as trustee under the will for the benefit of the widow and daughters of the deceased. In all its dealings with the firm since January 19th, 1875, the bank acted in good faith, upon the belief that the whole estate of Roswell Blodgett was holden for the debts of the firm by virtue of the copartnership agreement of January 16th, 1875. Blodgett v. American National Bank. About April 1st, 1875, Roswell F. Blodgett and John B. Clapp caused to be published in the three daily papers in the city of Hartford the following advertisement: "NOTICE. The general partnership heretofore existing under the name of R. F. Blodgett & Co. will be continued from this date under the name of Blodgett & Clapp. Hartford, April 1, 1875. ESTATE OF R. BLODGETT, by R. F. BLODGETT, Ex'r., ROSWELL F. BLODGETT, JOHN B. CLAPP." This advertisement was seen at the time of its publication by Frances C. Blodgett the widow. She and the daughters of the deceased knew the provisions of the will and the copartnership agreement in January, 1875. After the death of Roswell Blodgett the firm went on doing business till about March 31st, 1878, when it became insolvent. During all this time Roswell F. Blodgett regarded and treated the entire estate of the deceased as liable for the debts of the firm. From January, 1877, accounts were kept on the books of the firm with Roswell F. Blodgett as trustee for each of the other legatees and a private account with each of them, and another account with him as trustee of the estate of Roswell Blodgett. Roswell F. retained, and applied to the uses of the firm until it became insolvent, the larger part of the income of each of the petitioning legatees from the property distributed to her, which income so withheld was credited to her in her account on the books of the firm, with interest, as was also interest on her portion of the capital stock distributed to her, and also her proportional share, with interest, of the proceeds of stock sold by Roswell F. for the benefit of the firm. No one of the petitioning legatees knew, until about May 1st, 1878, that the three notes had been executed and stocks pledged by Roswell F. as before stated, nor that her Blodgett v. American National Bank. income so retained had been applied to the use of the firm, nor that the accounts had been kept and stocks sold as stated, except Mrs. Jane F. B. Cowles, who learned some. time in 1877 that a part of her income had been so applied by the trustee, and she then objected to this application of her income. Being informed by the trustee that he did not know as he could withdraw the part of her income so applied, she consented to let it remain, but told him to put no more of it into the business of the firm. Mrs. Frances C. Blodgett and Anna E. Blodgett consented that Roswell F. might retain so much of their respective incomes as was so withheld by him for his own benefit and necessities. No one of the petitioners has made any attempt to withdraw from the business of Blodgett & Clapp the amount of capital in business distributed to her. The value of the stock so pledged now held by the bank is $69,584. The amount of dividends on these stocks collected by the bank is $11,183.04. The amount due the bank on the paper of Blodgett & Clapp is about $41,000. On the 27th of May, 1878, the petitioners gave the bank notice in writing of the interest of the children of Roswell Blodgett, and of his widow in the stocks delivered to it by the trustee, and that such delivery was without their knowledge or consent, and forbade the bank to dispose of the stock or the income of it in any manner, except by delivering it and the income of it to R. F. Blodgett as trustee. Upon these facts the case was reserved for the advice of this court. R. D. Hubbard and F. Chamberlin, for the petitioners. The respondent claims that the alleged transfers to it of trust property, though primâ facie unlawful, are justified by certain provisions of the copartnership contract. The provisions relied upon, although unusual, have, to some extent, been discussed by text-writers, and passed upon by courts of last resort. Parsons on Part., 406, 439; M'Neillie v. Acton, 4 De G., M. & G., 755; Pitkin v. Pitkin, 7 Conn., VOL. XLIX.-3 Blodgett v. American National Bank. 307; Burwell v. Mandeville, 2 How., 579. The law of these cases has been recently carefully reviewed and confirmed by the United States Supreme Court in Smith v. Ayer, 11 Otto, 320. By these authorities the principles are fully established that any such liability of an estate as is here claimed cannot be presumed, but must exist, if at all, by virtue of express agreement; and that an express agreement will not raise such a liability except when, by the use of "the most clear and unambiguous language," it demonstrates "in the most positive manner the intention of the testator to make his general assets liable for all debts contracted in the continued trade after his death." Tested by these rules this copartnership contract falls far short of justifying such construction as is claimed by the respondent; for the claim is not, and cannot be, based upon any language expressly creating such liability, but the court is asked to infer it from the provision that Roswell Blodgett's death "shall not dissolve the partnership;" and the language of the partnership contract does not intimate in any manner,much less "demonstrate in the most positive manner by the use of clear and unambiguous terms,"-an intention on the part of Roswell Blodgett to make his general estate liable for firm debts contracted after his death. In Ex parte Richardson, 3 Madd. Ch., 138, we have a case which runs. quatuor pedibus with the case at bar. The decision of the vice-chancellor, Sir John Leach, was as follows:-"A trustee under a will carrying on a trade pledges the trust property given to him for that purpose, and also his own property; but what is the trust property given to him for that purpose must depend upon the terms of the will. In this case all there was meant to be left to carry on the trade was the capital in the trade, and the executrix was not authorized to employ one shilling of the assets beyond the capital in the trade. What the executrix has employed beyond the capital was in breach of her trust." This decision is one of those referred to with approval in Smith v. Ayer, 11 Otto, 330, and by reason of its very close analogy would seem to be decisive of the case at bar. In respect of Blodgett v. American National Bank. the provisions of this co-partnership agreement, we therefore submit, that their effect is not to make the entire estate of Roswell Blodgett liable for the debts of the firm incurred after his decease, but only to make liable therefor such part of his estate as prior to his death he had invested, or agreed to invest, in the business of the firm. Ex parte Garland, 10 Ves., 109; and cases before cited. These articles afford ample proof that Roswell Blodgett did not intend to bind his general assets for debts of the firm contracted after his death. The following provisions clearly show that he had no intention of contributing any additional capital other than that named in the articles, viz. :"To supply the needed additional capital, Roswell Blodgett shall furnish in cash within six months, $2,500." "That interest on cost of store and on capital furnished, shall be credited to him for one year only, and thereafter paid semi-annually in cash." "That if any capital can be spared from the business of the firm the same shall be paid to Roswell Blodgett or his legal representative, in reduction of the amount of capital furnished by him." "That the executor shall act in his stead in the performance of all the stipulations herein contained." And as the agreement expressly stipulates what the executor should do, but does not stipulate that he shall provide for the firm a line of discounts, therefore his acts in that respect were unauthorized. Further, as Roswell Blodgett had no share in the profits or losses of the firm, it is unreasonable to presume that he could have intended to make his whole estate liable for all the debts of the firm incurred after his death. Were it possible to hold that the entire estate of Roswell Blodgett would be liable, under the co-partnership agreement, for all debts incurred by the firm after his death, it would not follow that his executor would be thereby authorized to do the acts of which these petitioners complain. His executor was not an agent clothed with all the powers of a living Roswell Blodgett, but an agent limited to the performance of such stipulations only as the partnership contract imposed upon the testator. And such executor at |