Mills v. Lumpkin , 1 Ga. 511 ( 1846 )

By the Court

Warner, Judge.

This was a bill of injunction, filed at the instance of the complainants, to restrain the defendant as administrator from collecting and reducing to possession the assets of his intestate, in the due course of administration, on the ground, one of the complainants held a much larger claim against the intestate, than the one which the administrator is attempting to enforce against them.

The claim which the administrator is endeavoring to collect out of the complainants, is for property sold by him since his intestate’s death, and is founded on a note made payable to the adminstrator himself. The complainants seek to set-off, or discount so much of their claim, as will extinguish the demand of the administrator against them ; and to perpetually enjoin him from collecting the same.

The complainant’s demand being due from the intestate in his lifetime, and the demand against the complainants which the administrator is enforcing, having been created and made payable to the administrator himself, since the death of the intestate, could not at law be set off against the, claim of the latter. “ A debt which accrued in the lifetime of the testator, cannot be set off against a debt which accrues to the executor, after the death of the testator.” — 1 Leigh's Nisi Prius, 156, and cases there cited. Kittrington vs. Stevenson, Willes’ Rep. 264; 2 Williams on Ex'rs, 1155. With regard to sets-ofT, courts of equity follow the law, unless some special circumstances occur to justify an interposition, as where peculiar equities intervene between the parties. — 2 Story's Eq. 663-4, section 1437.

Does the case made by the complainant’s exhibit such special circumstances or p“culiar equities between the parties, as will authorize the interference of a court of equity, to restrain the administrator in the due administration of the assets of his intestate? We think not, and are of the opinion it ought never to have received the sanction of the chancellor. It is true, the complainants charge it is their belief, founded upon the conduct of the administrator, as well as from information which they believe to be trae, that they will not be able to recover their claim from the administrator and that it will be entirely lost. The complainants nowhere state the reasons or grounds of their belief; nor do they state in whatporticular manner the administrator has conducted himself; nor do they pretend to state what particular information they have received, which enables them to arrive at the conclusion, they will not be able to recover their claim from the administrator. The grounds of their belief, the particular conduct of the administrator, as well as the nature and extent of the information received by them, would be very important in order that the court might be enabled to judge of their sufficiency. Besides, it would be very difficult for the defendant to form an issue with the complainants upon their general allegations, and still more so to negative them by proof.

The complainants further allege that Jonas King is the only security to the administration bond of the administrator, and if the money sought to be' collected shall go into his hands, they have good cause to apprehend it will be so managed as to render King liable therefor on his bond. What acts of the administrator have given the complainants “ good cause” of apprehension, we are not informed, nor do we exactly know what they desire us to understand by the term “ so managed,” as applicable to the official conduct of the administrator.

It is charged, the administrator has paid debts out of their legal order ; if so, he and his securities are responsible : and it is nowhere alleged the administrator or his securities are insolvent. The mistake in the confession of judgment could have been amended, and corrected by the court in which the same was made. — Bank of Pennsylvania vs. Condy, 1 Hill's S. C. Rep. 209, and cases there cited.

When a complainant comes intoacourt of equity,to ask its assistance to interfere with the legal administration of the assets in the hands of an executor or administrator, he should at least state a clear, prima facie case on his part, to justify such an interference. Had the complainants shown such a case by their bill, as would have authorized the interference of a court of equity, we are of the opinion it is not one of those cases which would have required the payment of the money into court under the rule of practice established by the Superior Courts. *

We affirm the decision of the court below dissolving the injunction, on the ground alone, it does not appear upon the face of the complainant’s bill, that there is sufficient equity to authorize a continuance of the injunction. ' ,