Dunnica v. Thomas' Adm'r

Gamble, J., delivered the opinion of the court. • The question presented in this case is, whether a county or probate court has jurisdiction to hear and decide upon a set-off, claimed by an [387] administrator, against the demand exhibited for allowance by a creditor of an estate, when the set-off exceeds the demand of the creditor. It is most certain that such court has no jurisdiction to render a judgment in favor of the administrator for the excess of the set-off over the demand of the creditor, it can do no more than disallow the demand exhibited against the estate, and if the set-off is by that action extinguished, the excess is lost to the estate. The 10th section of the 4th article of the act concerning executors and administrators, Revised Code, 92, prescribes the course of proceeding, in a case when a person having a demand against an estate, admits a counter demand in favor of the estate, exceeding his in amount. In such case he is required to admit the amount of the debt which he owes the estate. But neither this, no any other setion of that act, contemplates a casein which a set-off may be claimed by the administrator, against a person holding a demand against the estate, the set-off exceeding the demand so held, and yet resisted or denied by the creditor of the estate, As the creditors, and others interested in an estate, are entitled to have all the assets collected, it would be dangerous to their interests to allow an administrator to use as a set-off in the county court, a demand exceeding the claim asserted against the estate. The administrator has ready access to the other tribunals, and has ample time to prosecute the demand of the intestate against the debtor. There seems to be no necessity for allowing such set-off to be asserted in the county court, and it is evidently not within the meaning of any part of the administration law, that such controvercies should be adjusted in those tribunals. The decision of the circuit court, in rejecting the set-off, as a subject not within the cognizance of the county court, and consequently not within the jurisdiction of the circuit, when hearing an appeal from the county court, was correct and the judgment is affirmed.