I see no reason for denying a defendant the right to defeat a plaintiff's action by any defense, set-off, or counterclaim which he may have at the time of trial and which he has brought into the case by a proper pleading. Nor do I see any reason for not applying this to an action by an administrator or executor upon a cause of action in favor of the decedent, provided it can be done without disturbing the order of distribution of the decedent's estate among his creditors as provided by the statutes.
In 21 American Jurisprudence, 899, Section 934, it is said:
"A creditor who, after the testator's death, receives money of the estate belonging to the executor or administrator is not entitled to a set-off for a debt due him from the decedent. Want of mutuality is generally relied on as a ground for denying the right of set-off in such cases. * * * Where, by reason of the special character of an asserted set-off, it appears that in *Page 220 no particular can the rights of any party interested in the assets of the estate be affected by its allowance or where the estate is solvent and able to pay all claims against it, including the allowed claim of a defendant asserting it as a set-off, the courts in the first instance do not, and in the latter should not, apply the strict rule of mutuality to prevent the allowance of the set-off."
In People, ex rel. Webb, Atty. Genl., v. California SafeDeposit Trust Co., 168 Cal. 241, 141 P. 1181, L.R.A. 1915A, 299, the court allowed a set-off, where it appeared that the estate was solvent, and for that reason there could be no disturbance of the statutory order of distribution among creditors. The authorities are collected in an annotation to that case.
As the judgment is reversed and the cause remanded for further proceedings, if the allowance of this set-off would enable the defendant as assignee to get an advantage in the distribution of this estate to which it would otherwise not have been entitled, that fact may be pleaded and proven.
For this reason, in addition to the reasons stated in Judge Ross' opinion, I concur in the reversal of the judgment.