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BURKUS v. HENSHALL (11/12/56)

November 12, 1956

BURKUS
v.
HENSHALL, APPELLANT.



Appeals, No. 160, March T., 1956, and No. 29, March T., 1957, from final decree of Court of Common Pleas of Washington County, No. 5316, in equity, in case of Frank Burkus, Jr. v. Charles D. Henshall, Administrator, etc., and Grace V. Watkins. Decree affirmed. Equity. Plaintiff's motion for judgment on the pleadings granted, before CARSON, P.J., CUMMINS and WEINER, JJ., opinion by CARSON, P.J. Defendants appealed.

COUNSEL

P. Vincent Marino, with him John F. Roney, for appellants.

Sanford S. Finder, for appellee.

Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Arnold

[ 386 Pa. Page 479]

OPINION BY MR. JUSTICE ARNOLD

On January 1, 1952, Frank Burkus, Jr. and Edgar D. Hagerty, both duly licensed undertakers, entered into a written agreement providing for the establishment of a partnership business as undertakers under the name of Hagerty-Burkus Funeral Home.

By the agreement, the partnership was to continue indefinitely until dissolved. It provided, however, that upon the death of Edgar D. Hagerty the partnership would not be deemed to be dissolved, but that the wife of such deceased partner (Nell Hagerty) would continue

[ 386 Pa. Page 480]

    therein according to the terms thereof; that upon the death of Nell Hagerty her interest would pass to the mother of Edgar D. Hagerty, to wit, Ella J. Hagerty; and upon the death of Ella J. Hagerty her partnership interest would pass to Grace V. Watkins, sister of Edgar D. Hagerty, who would be entitled to receive a sum from the partnership sufficient to maintain herself, to be charged against her share of the profits.

The provisions that the partnership shall not be dissolved by death were rendered nugatory by the Funeral Director Law of 1951 (January 14, 1952), P.L. 1898, 63 PS § 479.8, which repealed the Act of 1931, and which provides: "... No person not licensed under this act shall have any interest in the practice carried on by a licensed funeral director. Upon the death of a licensee, the board, in its discretion, may issue a license and renewal thereof to his estate, only for a period not exceeding three (3) years, or widows of deceased licensees as long as they remain unmarried ..." (Italics supplied).

Under the Act of 1931, P.L. 485, 63 PS § 478a-478r, there was no such express or implied provision against two persons forming an association as a partnership where one such was licensed and the other was not.

After the Act of 1951 (January 14, 1952) became effective, it became evident that the legislature abolished the "silent, unlicensed partner" in the undertaking business, and no unlicensed person could have any interest ...


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