Dorsey v. Simmons

Trippe, Judge. 1. It has been more than once held by this Court that a legatee, or the purchaser of a distributive share in an estate, may, in equity, set-off the same against a judgment in favor of the representative of the estate against such legatee or owner of such share, unless some special reason exists for the collection of the judgment by the executor t Moody vs. Ellerby, administrator, 36 Georgia, 666 ; Carter vs. McMichael, 20 Ibid., 96; Swift vs. Swift, 13 Ibid., 140. 2. The reason set up by the executor in this case, that in 1863 counsel fees and cost had been paid, and that he desires reimbursement for the same, we do not think sufficient, under the circumstances connected therewith. It appears that there Avas Confederate currency in hand at that time, more than was necessary for their payment. This currency Avas afteiwards funded by the representatiAre in Confederate bonds and lost, or became worthless. It would hardly be equitable for an executor, Avho had such funds in hand during the war, and who paid expenses accruing in 1863, to claim noAv, when he says that such currency became worthless in his hands, that he should be repaid with what little of good assets that may be undisposed of. It does not appear but that he made the payment with Confederate currency. The debt was contracted in 1863, and paid then. If paid in that currency, the amount he held was sufficient for the purpose, or the amount he held and funded in 1864 was sufficient to have repaid him. We think, at least, that it is proper for this matter to be inquired into. 3. The former bill filed by the husband of complainant, and which was dismissed, does not affect the right of the Avife in this case. The husband has since died. The distributive share of the wife, under her grand-father’s will, survives to her, and her right to assert all her equities is unaffected by the former proceedings, Avhich Avere dismissed AA'ithout any j udgment or decree affecting the merits. The judgment sought to be enjoined, and against Avhich the set-off is prayed, is [255] against the deceased husband. It is levied on land which she holds under her husband. It seeks to take property from ber which would, by its sale, become assets to which her legacy would attach. All the reasons which apply to the prinple that would allow the set-off, if the judgment were against her, exist in this case. There is no difference, in reason or equity, between the one case and the other. If there appear no necessity why the debt should be collected, except to pay the money back to the one from whom it is, to all intents and purposes, collected, equity will restrain the collection: Moody vs. Ellerby, supra. 4. "We, of course, do not determine what may be the facts shown at the final hearing. But what appeared on the application for the injunction entitle the complainant to have the collection of the judgments stayed until her rights can be determined at such trial. Judgment reversed.