Equity will not interfere to embarrass a vested legal right. Therefore if a firm cred itor levies on a separate estate, he has prior ity over the subsequent execution of a sepa rate creditor; Hoskins v. Johnson, 24 Ga. 625; Wisham v. Lippincott, 9 N. J. Eq. 353; Meech v. Allen, 17 N. Y. 300, 72 Am. Dee. 465. A separate creditor can sell nothing but his debtor's interest. An execution against the firm, though subsequent, has priority, because it attaches this paramount right of the co-partner. But a firm creditor, without a legal lien, has no standing; pee v. Bunn, 22 Cal. 194 ; Mittnight v. Smith, 17 N. J. Eq. 259, 88 Am. Dec. 233 ; Rodriguez v. Hefferman, 5 Johns. Ch. (N. Y.) 417. But where there is an execution against each partner and a subsequent execution against the firm, and the sheriff seizes and sells firm goods under the three, the proceeds are given first to the joint creditor, and the remainder to the separate creditors in proportion, to each partner's interest ; Appeal of Cover, 29 Pa. 9, 70 Am. Dec. 149. So in the case of judgments against real estate. A judgment on a separate claim has no lien on the firm real estate, but only on the partner's inter est. But a firm judgment is a lien on a part ner's separate real estate, and takes priority over a subsequent separate judgment; Meech v. Allen, 17 N. Y. 300, 72 Am. Dec. 465; Gil laspy v. Peck, 46 Ia. 461. Partnership cred itors who have a levy on partnership goods are entitled to be paid before a creditor of one of the partners, who had a prior attach ment on the individual interest of one part ner ; First N. Bk. v. Brenneisen, 97 Mo. 145, 10 S. W. 884.
When an assignment for creditors has been made by a firm, and also by the part ners individually, the holder of a note ex• cuted by the firm and by the individual members is entitled to have the estates of the partnership and of each partner kept separate, and to receive a dividend from each, though the note was given for a firm liability ; In re Carter, 98 Ia. 261, 67 N. W. 239.
As to the remedies of joint and separate creditors both at law and in equity, see Gil more, Partn. ch. VII, pp. 404-458, where the cases are collected and classified.
Duration. Prima facie every partnership is determinable at will. But it may be en tered into for a definite term by agreement express or implied ; Ewell's Llnd. Part. *121, 413.
A partnership at will is presumed to con tinue so long as the parties are in life and of capacity to continue it; 1 Greenl. Ev. § 42; Irby v. Brigham, 9 Humphr. (Tenn.) 750. See PARTNERS. A partnership for a term is presumed to continue during the term, provided the parties are in life and of legal capacity to continue it. If a partner ship be continued by express or tacit consent after the expiration of the prescribed period, it will be presumed to continue upon the old terms, but as a partnership at will; Mifflin v. Smith, 17 S. & R. (Pa.) 165. But in no case will the law presume a partnership to exist beyond the life of the parties; 1 Wils. Ch. 181. When a partnership has been en tered into for a definite term, it is neverthe less dissolved by death within the term ; Story, Part. § 195. The delectus personce is so essentially necessary to the constitution of a partnership that even the executors or other representatives of partners themselves do not, in their capacity of executors or rep resentatives, succeed to the state and condi tion of partners ; Kingman v. Spurr, 7 Pick.
(Mass.) 237; 3 Kent 55; Remick v. Emig, 42 Ill. 342; Spaunhorst v. Link, 46•Mo. 197. The civilians carried this doctrine so far as not to permit it to be stipulated that the heirs or executors of partners should them selves be partners ; Domat, lib. 1, tit. 8, s. 2; Pothier, Part. n. 145; though Pothier thinks it binding.
At common law, the representatives of a deceased partner may be made partners in his stead either by original agreement or by testamentary direction ; Ewell's Lind. Part. *590; Alexander's Ex'rs v. Lewis, 47 Tex. 481. Clauses providing for the admis sion into the firm of a deceased partner's representatives will, in general, be construed as giving them an option to become partners, and not as constituting them partners ab solutely ; 7 Jarm. Cony. 120; 1 McC1. & Y. 569; 2 Russ. 62. The executor of a deceased partner is not compelled in such case to be come a partner, so as to charge the estate with debts incurred after the partner's death; Wilcox v. Derickson, 168 Pa. 331, 31 Atl. 1080; Wild v. Davenport, 48 N. J. L. 129, 7 At] 295, 57 Am. Rep. 552. In any event it must be a new partnership ; Mc Grath v. Cowen, 57 Ohio St. 385, 49 N. E. 338; Kennedy v. Porter, 109 N. Y. 526, 17 N. E. 426 ; Vincent v. Martin, 79 Ala. 540; Hoard v. Olum, 31 Minn. 186, 17 N. W. 275; contra, Butler v. Toy Co., 46 Conn. 136 ; Ed wards v. Thomas, 66 Mo. 468; Lewis v. Alexander, 51 Tex. 578; and such is said to be the tendency of modern decisions ; Pars. Part. Beale's ed. § 343, n.
Only the fund already invested or direct ed to be invested by the testator is subject to the claims of new creditors; Davis v. Christian, 15 Gratt. (Va.) 11; 10 Ves. 110; Columbus W. Co. v. Hodenpyl, 135 N. Y. 430, 32 N. E. 239; any direction, in order to charge the genera] assets, must be clear and unambiguous ; Burwell v. Cawood, 2 How. (U. S.) 577, 11 L. Ed. 378; Laughlin T. Lorenz' Adm'r, 48 Pa. 275, 86 Am. Dec. 592.
The rule in England is clear that when an executor undertakes to participate in the business, whether in consequence of a testa mentary direction or otherwise, he becomes Personally liable to creditors as a partner, in addition to the liability of the estate. The common-law relation of partnership will not admit of a qualified liability ; Ewell's Lind. Part. *593, *604 ; 11 Moo. P. C. 198. But simply taking the profits will not charge the executor; L. R. 7 Ex. 218. In America, some authorities have declared that the executor is not personally liable when the testator has directed him to continue the business, but only when he does so of his own motion ; Edgar v. Cook, 4 Ala. 588 ; Owens v. Mackall, 33 Md. 382; Laughlin v. Lorenz' Adm'r, 48 Pa. 275, 86 Am. Dec. 592 ; contra, for person al liability of executor ; Alsop v. Mather, 8 Conn. 584, 21 Am. Dec. 703. A simple direc tion to allow a fund to remain in a partner ship may be construed as a loan to the sur vivors; 9 Hare 141. An executor is not lia ble personally if he merely leaves the estate of his testator in the business and takes no part in it ; Avery v. Myers, 60 Miss. 367; Wild v. Davenport, 48 N. J. L. 129, 7 Atl. 95, 57 Am. Rep. 552.