Krause v. Beitel

The opinion of the court was delivered by Gibson, C. J. Nothing in the will indicates an intent to limit the bequest in favour of Elizabeth Moll, to her separate use. The limitation to her heirs in case of her death was probably inserted to prevent the legacy from lapsing; but it is manifest from its being used also in reference to the testator’s sons, that it was not intended to control the marital rights of the husbands of his daughters. The remaining point 1 take to be equally clear. As regards cross demands, the trustee of an insolvent estate, stands in a situation perhaps less, but certainly not more, favourable than that of any other assignee; his interest in the insolvent’s debts being exactly that of the insolvent himself as it stood affected by countervailing equities at the time of the assignment. The creditors are not purchasers in the first instance, and the trustee takes for their benefit, consequently [204] subject to all the rights which may grow out of the original transaction. It is immaterial, therefore, whether the liability set up as a defence were originally absolute or contingent, the relations of the parties being unalterable by the accidental insolvency of one of them. Here one of the defendants had actually paid a debt for the insolvent before his discharge, and was sued for another, which he has been compelled to pay since, and it conflicts with no provision of the legislature to allow the defendants the benefit of these payments, not perhaps as a set-off but as a defence, that would be made available by a chancellor; as was held in Frantz v. Brown, (1 Penn. Rep. 261,) without the aid of any statutory provision whatever. We do not perceive, therefore, that' the court below erred in doing substantially the same thing in an action at law. Judgment affirmed.