of Appeal from Third District. 1916," and that no claims were presented. The pleadings of the respective parties are also silent as to whether or not an accounting of the partnership affairs was ever demanded on the part of any interested party. It appears from the pleadings that the entire assets of the copartnership consists of property against which there are no liens, and that there are no unsatisfied partnership obligations or claims of any nature, except the claims of the defendants for debts and obligations paid and discharged by surviving partners for the benefit of the partnership property subsequent to the death of John Sharp, Sr., and the consequent dissolution of the copartnership, and that all of the interested parties are before the court in a representative capacity. Therefore we can see no legal objection to a sale being made, an accounting had and the proceeds of sale distributed equitably to the estates of the deceased partners in 1 accordance with their respective rights, under the orders of the district court in this action. It appears that the plaintiffs asked for and the court ordered a sale and distribution of only a part of the partnership property among the several estates without any accounting. The defendants called for a sale of all the partnership property, an accounting, and a distribution of the proceeds between the respective estates of the deceased partners. 2 Under the provisions of the Probate Code (Comp. Laws 1917, section 7724 [3918]), ordinarily, when a partnership is dissolved by death of one of its members, the settlement of its business affairs belongs to the surviving partners, and it becomes their duty to make settlement without delay, and account to the legal representatives of the deceased partner. In the case at bar the surviving partners, for some reason unexplained, failed to exercise the right accorded them by the statute, and it does not appear that any interested party called upon them to do so before the commencement of this action. In view of the relationship of the parties and the character of the partnership property, we think it can safely be assumed that the parties interested preferred to defer a settlement of the partnership business until Sharp et al. v. Sharp et al., 54 Utah 262. such a time as the mining property and interests might be disposed of advantageously and for their mutual benefit. Under the facts and circumstances, as shown by the pleadings of the respective parties, we think the district court had jurisdiction of the parties and the subject-matter, and, upon a proper showing being made, the court had the right to order a partition by sale of the partnership property, and accounting if needs be, and the proceeds of sale distributed to the estates of the deceased partners, equitably and in accordance with their respective rights under the partnership agreement. As has been pointed out, the defendants, by their answer and counterclaim, sought for a sale of all the partnership property and an accounting predicated on the allegations of their answer and counterclaim that prior to the death of John Sharp, Sr., the partnership had incurred certain indebtedness remaining unpaid at the time of his death, and that subsequently this indebtedness had been paid and discharged by the surviving partners for the benefit of the partnership interests. The relief thus sought for was denied the defendants on the grounds (1) that the claim of the defendants was stale and inequitable, and (2) that it was not presented in time for allowance against the estate of John Sharp, Sr., pursuant to Comp. Laws 1917, section 7648 (3851), 7655 (3858), and 7671 (3874). For our convenience we will discuss the contention made by the plaintiffs and the rulings of the trial court in the reverse order. (A) Was it necessary for the surviving partners to present their claims in the matter of the estate of John Sharp, Sr., the deceased partner? The statutory provisions of our Probate Code, with reference to presentation of claims against estates of deceased persons, including the above references, provide as follows: "Sec. 7645 (3848). Every executor or administrator must, immediately after his appointment, cause to be published a notice to the creditors of the decedent. "Sec. 7648 (3851). All claims arising upon contracts, whether the same be due, not due, or contingent, must be presented within the time limited in the notice, and any claim not presented is barred forever. Appeal from Third District. * *" "Sec. 7655 (3858). No holder of any claim aaginst an estate shall maintain any action thereon unless the claim is first presented to the executor or administrator, except. "Sec. 7671 (3874). If there is any claim * * contingent * the amount thereof or such part of the same as the holder would be entitled to if the claim were * established, or absolute, must be paid into the court and there remain to be paid over to the party when he becomes entitled thereto, or if he fails to establish his claim, to be paid over or distributed as the circumstances of the case require." As heretofore pointed out, the proceedings in this case are silent as to when John Sharp, Sr., died. There is absolutely no allegation as to the dates when his will was admitted to probate, when the executors were appointed, when they qualified, or when, if ever, any notice was given to creditors to present their claims. A careful reading of section 7671 (3874) in connection with section 7724 (3918), heretofore referred to, convinces us not only of the utter impracticability of presenting the contingent claims of surviving members of an unsettled partnership business against the estate of a, deceased partner without an accounting, but that the term "contingent claim," as employed and used in section 7671 (3874), was not intended to have any application in 3-5 case of dissolution of a partnership by death of one of its members in the winding up and settlement of its affairs. Moreover, the defendants in this action are seeking nothing more than a settlement of partnership affairs as distinguished from a demand for judgment against the personal estate of a deceased partner. The relief asked for is against the partnership, and is nothing more than that partnership property shall be subjected to the payment of partnership debts and obligations. To that extent, at least, we think the partnership may be regarded and treated as an entity distinct from its members. Therefore the rights of the partners inter se should be worked out through the partnership relation. The relation of partners as between themselves is a fiduciary one, that of trustee and cestui que trust, and this fiduciary relationship exists between the surviving partner and the legal representative of the deceased 6 partner. Our statute makes it the duty of the surviving part Sharp et al. v. Sharp et al., 54 Utah 262. ner to close up the partnership business and account to the representative of the deceased partner. If the surviving partner dies before the partnership business is settled, the duty devolves upon his legal representative. Galbraith v. Tracy, 153 Ill. 54, 38 N. E. 937, 7 28 L. R. A. 129, 46 Am. St. Rep. 867. Partnership real estate, for the purposes of settlement of the partnership business, is regarded in equity as personalty. Lindley on Partnership (2d Ed.) pp. 764, 765, and notes. After partnership debts and liabilities are paid and discharged, then, and not until then, the remainder goes to the heirs and devisees. 20 R. C. L. 76. In the case at bar all the parties, by their pleadings, have expressly relied upon a partnership contract expressly declaring the realty sought to be partitioned partnership property. From the standpoint of justice and equity we can see no clear way for either party to claim a specific interest therein until an accounting is had and the just debts and liabilities of the partnership are paid and discharged. While the procedure with respect to partitioning of real property in our jurisdiction is special and defined by statute, the district court, in which the action is brought, is clothed with general equity powers, and the nature of the case is such that the court cannot in partitioning do complete justice between the parties before it in any other way than by ordering an accounting of partnership affairs. (B) Is the claim set forth in the counterclaim barred by laches? Although laches is not expressly pleaded in the case at bar, the plaintiffs contend that it appears upon the face of the answer and counterclaim of the defendants, and therefore the question is raised by their demurrer; citing Bell v. Hudson, 73 Cal. 285, 14 Pac. 791; 2 Am. St. Rep. 791; Lansdale v. Smith, 106 U. S. 391, 1 Sup. Ct. 350, 27 L. Ed. 219. Let it be conceded that the question of laches may be raised on demurrer, we think the cases cited may be very readily distinguished from the case at bar. In the Bell Case, relied on by plaintiffs, the facts were: The partners had carried on a partnership business from Appeal from Third District. 1849 until the death of one of the partners, John A. Bell, in 1859, at which time there belonged to the firm "a large amount of personal property, consisting of stock, beef, cattle, horses and mares, real estate in the names of the partners, notes and other demands, besides other property to the plaintiff unknown." No administration was had upon the estate of John A. Bell until June 3, 1885, during which time the surviving partner continued in possession of all the aforesaid property, disposing of it as his own and as he saw fit. The surviving partner died in 1885, and suit was brought for an accounting against the executors of the estate of William M. Bell, the surviving partner. The trial court held that the fact that they delayed until the death of the surviving partner, a period of 25 years, their action was stale. The Lansdale Case did not involve the settlement of a partnership business, but is illustrative that demurrer will lie to a complaint seeking relief 45 years after the cause of action arose involving title to and claiming an interest in, real property. In the cases cited by plaintiffs, and, as we think, practically all of the cases where the doctrine of laches has been applied by the courts, it appeared on the face of the complaint that by reason of lapse of time prejudicial changes had taken place in the conditions or relations of the property to the parties, or the parties had been prejudiced by loss of testimony or inability to make proof of the changed conditions of the property or its relation to the parties. In the case at bar we can readily appreciate that all parties concerned in the mining property and interests involved may well have considered that it was to their mutual advantage to keep and hold the partnership property until it would command a price adequate to pay and discharge the partnership debts and liabilities, and if in the meantime the surviving partners paid and discharged the debts and liabilities out of their personal means in order to benefit the partnership business and preserve its property, then, we think, before the plaintiffs should be permitted to share in the benefits thus de |