Hicks v. National Bank

Opinion by Mr. Justice McCollum, It is a well-settled rule, supported by reason and authority, that in an action by the administrator of a solvent estate the defendant may set off against the claim of the plaintiff a debt due by the decedent when the suit was brought. In such a case no valid reason appears for compelling the defendant to pay what he does not owe and look to his debtor’s estate for the repayment of it. By requiring him to do so the commissions of the administrator may be increased at the expense of the estate and the defendant may be driven to an action against it for money he paid under compulsion of the law. It will thus be seen that the probable result of a departure from the rule above stated would be to delay the settlement of the estate, to increase litigation, and to subject the parties concerned to additional and unnecessary trouble and expense in the adjustment of the accounts between them. It was thought by the learned court below that the rule we-are considering was overthrown by Chipman v. Ninth National [641] Bank of Phila., 120 Pa. 86, which was an action by an assignee for the benefit of creditors to recover deposits made by the assignors with the defendant, and in which it was held that drafts and notes discounted for them before and maturing after their assignment were not admissible as a set-off. In this case the familiar rule that, in an action by the administrator of an insolvent estate, the debts of a decedent maturing after his death are not admissible as a set-off, was applied, and properly so. An assignment for the benefit of creditors is a badge of insolvency. It is presumably made because the assignor is not able to pay his debts as they became due in the ordinary course of his business. Chipman v. The Bank, supra, did not consider or allude to the rule as to set-off in actions by administrators of solvent estates, but dealt with an insolvent estate and the rights of the assignor’s creditors in it. The eases cited in the brief of the plaintiff's counsel enforced the rule as to set-off in actions by insolvent estates, and recognized the rule applicable to it in actions by solvent estates, and in the opinion of the court, Beckwith v. The Union Bank, 9 N. Y. 211, which was an action by an assignee for the benefit of the creditors of an insolvent firm, was cited as like the case then under consideration. We conclude that Chipman v. The Bank is not in conflict with the defendant’s contention in the case before us. A motion for judgment for want of a sufficient affidavit of defense is in the nature of a demurrer. It admits the existence of the facts averred and denies their sufficiency as an answer to the claim. By the affidavit filed in this case it sufficiently appears that Henry Hicks was solvent at the time of his death, and that the defendant has valid claims against his estate, some of which matured before the suit was brought. It follows from what has been said that it was error to enter the judgment appealed from. Judgment reversed and procedendo awarded.