Elias D. Mullan, as administrator of the estate of Gustavus A. Menzell, sued Edwin P. Eerris tor money collected as an attorney, belonging to said estate, and withheld. Eerris answered, by way of set-off, that the said estate was indebted to him for services rendered in the lifetime of Menzell, and that the administrator was' indebted to him for services rendered said estate since the death of Menzell.
Reply:—
First. In denial; and,
Second. That the amount for services, claimed in the answer against said estate, was not a preferred debt; that the estate is insolvent; that after paying the expenses of the administration, there will not be sufficient assets to pay the general indebtedness; offering, upon the settlement of the estate, to pay the appellant his pro rata share/
Demurrer to the second paragraph of reply for want of facts; overruled; exceptions. Trial, and finding by the court in favor of the appellee; exceptions to the conclusions of law upon the facts found. Judgment. Appeal. Assignments of error:—
1st. Overruling the demurrer to the second paragraph of reply;
2d. Insufficiency of the facts stated in the complaint; and,
*1653d. Error in the conclusions of law on the special finding.
1st. There was no error in overruling the demurrer to the second paragraph of reply. The appellant’s set-off against the estate was not a preferred debt. It belonged to the fourth class of debts against the estate.
2d. Ho objections were pointed out to the complaint, and we see none. It is good.
3d. The facts stated in the finding are not questioned. The conclusions-of law upon them are in accordance with the ruling on the demurrer to the second paragraph of reply. For the services rendered to the administrator in settling the estate, the appellant was allowed his set-off; for the other services set up in his answer, his set-off was denied. This is right.
The judgment is affirmed, with costs and ten per cent, damages.