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CERCEO v. DEMARCO (01/06/58)

January 6, 1958

CERCEO
v.
DEMARCO, APPELLANT.



Appeal, No. 357, Jan. T., 1957, from decree of Court of Common Pleas No. 1 of Philadelphia County, March T., 1956, No. 10232, in case of Romana Cerceo, executrix for the estate of Victor Mancini, v. Silvio DeMarco, individually and trading as Ivy Hill Drug Store. Decree affirmed.

COUNSEL

William S. Stein, with him Martin G. Stein, for appellant.

Rudolph J. DiMassa, for appellee.

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

Author: Cohen

[ 391 Pa. Page 158]

OPINION BY MR. JUSTICE COHEN

In July of 1949 Victor Mancini, now deceased, entered into a partnership agreement with Silvio DeMarco

[ 391 Pa. Page 159]

    for the operation of a pharmacy under the name of the Ivy Hill Drug Store. The agreement provided for the continuation of the partnership for a term of five years and for a renewal term of five years should the partners mutually agree in writing to such extension. Although no agreement extending the original five year term was executed by the parties, Mancini and DeMarco continued to operate the pharmacy as if the agreement had been extended. It was on this theory that this case was argued before the court below and before us.

The agreement contains the following paragraphs which are pertinent to this litigation: "16. Partners agree that they will each take out insurance upon their respective lives in such amount and with such companies as said partners shall mutually determine. The premiums to carry said insurance shall be paid for by the partnership out of the net income arising from the said partnership, and the said premiums shall be a liability of the said partnership. The proceeds of the said policies of insurance, in the event of the death of either of the partners, shall be paid to such beneficiary or beneficiaries as the said deceased partner shall designate.

"17. It is hereby expressly agreed by and between said partners that as consideration for the payment by the partnership of the premiums upon the said policies of life insurance so taken out as aforesaid, upon the death of either partner during the continuance of the partnership, the entire partnership business, including all cash, notes, stock, merchandise, fixtures, equipment and all assets of every kind and character belonging to the partnership shall go to and become the absolute property of the survivor without any liability on the part of the said survivor to account therefor to any heirs, devisees, donees, legatees, beneficiaries,

[ 391 Pa. Page 160]

    relatives, spouses or children of said deceased partner, anything in any will or other writing in the nature of a last will and ...


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