Drew v. Drew , 25 Ga. App. 355 ( 1920 )

Smith, J.

1. “A debt of a testator or intestate is not a proper set-off .against a debt contracted with the representative of tlie estate. But it is otherwise if both were contracted during the lifetime of the decedent.” Civil Code (1910), § 4345.

(a) Applying the provisions of this code-section to the facts in this case, the court did not err in striking the answer of the defendant and the amendment thereto. An inspection of the pleadings in the case will show that no peculiar equity intervened in favor of the defendant which would take the case out of these provisions.

2. In view of the admission of indebtedness made in the answer, the court did not err in entering up judgment without further proof in favor of the plaintiff; but, it appearing to this court that by inadvertence the judgment was entered for more than the amount admitted by the defendant to be due the plaintiff, the judgment of the court below is affirmed with direction that the amount of $34.56 be written off from the judgment. It is further ordered that the cost of bringing the case to this court be taxed against the plaintiff in error.

3. Under the above rulings an oral contract between the attorney at law for the administrator and a creditor of the estate, that the amount of any purchase of property of the estate made by the creditor could be offset by the indebtedness due him, would not be binding upon the estate, especially where the plea of set-off alleged that the estate was amply solvent.

Judgment affirmed, with direction.

Jenkins, P. J., and Stephens, J., concur.