Gourley v. Walker

Adams, Ch. J. In our opinion the circuit court erred. The defendant, in pleading as a counter-claim the debt due to his testator’s estate, undertook to set off the debt due the estate in discharge of his own liability. It is evident that lie cannot be allowed to discharge his liabilities in that way. Any agreement which he .might make for the discharge of [81] Ills liability in consideration of the discharge of the plaintiff’s liability to the estate would not be valid. The plaintiff would remain liable to the estate. It has been held repeatedly that a partner has no power to apply firm assets in payment of his personal indebtedness, and that, having no such power, his attempt to do so does not affect the rights1 of the firm. Upon the same principle an executor lacks the power to release a debt due the estate upon any such consideration. An attempt to do so would be an attempt at maladministration, and would probably justify the court in removing him, and appointing another who would proceed to collect the debt notwithstanding the pretended release. If •the rule were otherwise, it might become a favorite method for a person who should be a creditor of a person acting as an executor, and debtor to the estate, to seek to discharge his liability to the estate by a release of the claim due personally from the executor, and especially if the person acting as executor was not able to discharge all his personal liabilities. Now, if such claims cannot properly be used to satisfy each other, then one is not a proper counter-claim to the other. Eeversed.