Rawson v. Copland , 3 Barb. Ch. 166 ( 1848 )

The Chancellor.

The decision of the assistant vice chancellor was unquestionably correct. The revised statutes provide that in suits brought by executors and administrators, demands existing against their testators or intestates, and be- ' onging to the defendant at the time of their deaths, may be set off, by the defendant, in the same manner as if the action had been brought by, and in the name of, the deceased. (2 R. S. 355, §§ 33, 37, of 2d ed.) To entitle the defendant to an offset against the executor or administrator, it is not necessary that the defendant’s debt should have been actually due, or really liquidated, at the death of the testator or intestate. But it is sufficient if it has become due and payable at the time the suit is brought against him by the executor or administrator ; so that if the decedent had lived, and had brought a suit against the defendant, at that time, the demand of the defen' dont would have been a proper subject of offset. A nd in this case, if Rawson, the intestate, had been living, and had filed this bill in his own name, to obtain satisfaction of the bond and mortgage due to him from the defendant, it is evident that the latter would have had the right to the set-off claimed in this case.

It is true, the decedent was not bound to pay the principal of the debts, which he assumed the payment of, before they became due and payable b}r the terms of the bonds and mortgages to A. Prince. But the contract of the decedent with this defendant was broken when the heirs and personal representatives neglected to pay the bonds and mortgages at the time they became due, in September, 1840. And the defendant having paid the amount to Bennem, or secured it by his bond and mortgage, which is the same thing in substance, the defendant’s right of offset was complete at the time of the filing of the bill in this cause. The assistant vice chancellor has fully examined the several cases which have a bearing upon this question, and has taken the right view of them. It is not necessary, therefore, that I should examine, them particularly. It is sufficient to say that the law corresponds with the manifest equity and justice of the case, as it appears from the pleadings and proofs.

The decree appealed from must, therefore, he affirmed, with costs.