We are of the opinion that the judgment sustaining the demurrer was correct. The statute of set-off (Rev. St., ch. 31, sec. 80) has in it these words: "If either party sue or be sued as executor or administrator, where there are mutual debts subsisting between the testator or intestate and either party, one debt may be set against the other, notwithstanding such debt shall or may be deemed in law to be of a different nature." the plaintiff, as administrator, cannot (400) be injured by the set-off being allowed, because he is chargeable only for the balance received after the set-off is allowed. Choses inaction, and debts of all descriptions, due to the testator or intestate, are assets; yet the administrator is not to be charged with them till he has received the money. Williams Exrs., 1023. An outstanding debt due to a decedent is not assets in the hands of his executor or administrator, where there has not been gross negligence, or collusive, fraudulent, and unreasonable delay in collecting it. Ruggles v. Sherman, 14 John., 446.Shipman v. Thompson, Willes, 103, is not like this case. There the defendant, after the death of his testator, received money due to the testator in his lifetime, and the executor sued in his own name to recover it, and the Court held that the defendant could not to this demand set off a debt due to him by the testator. If the creditor of a testator could seize the assets after the death of the testator, and then, when sued by the executor to regain those assets, be allowed to set off his debt, it would derange all the rules of priority in the legal administration of assets. In the case cited there lacked, at the death of the testator, that mutuality of debt which the statute permits to be set-off. The same law is laid down in Houston v. Robertson, 6 Taunt., 448: the executor of an underwriter brought an action against a broker for premiums due on policies subscribed by the testator, and the defendant was not permitted to set-off returns of premium which became due after the testator's death. The Legislature has expressly declared that mutual debts subsisting at the death of a testator or intestate, between him and another party, shall be set-off, notwithstanding the debts may in law be deemed of different natures.
PER CURIAM. Affirmed. *Page 306
(401)