Temporarily Assigned (dissenting in part). I agree with the Court’s determination of priority in favor of the claim for services of the accountant Brooks. I disagree with the decision of the court that Mrs. Hoffman should take a one-half share of the balance of the tax refund checks. As I see it, that result subverts the letter and intent of the decedents’ estates statute giving judgment creditors preference over general creditors in distribution of the estate. N. J. S. A. 3A:24-2.
Preliminarily, a proper disposition of this case requires-resolution of whether, apart from the terms of the separation agreement, the tax refund proceeds were beneficially the property of the decedent rather than of Mrs. Hoffman. It has never been claimed by Mrs. Hoffman that the refunds are attributable to payments by her or losses of hers. It is undisputed that decedent paid the taxes; and, as the majority opinion indicates, the proof is that the refunds emanated from amended tax returns filed at the decedent’s instance showing previously unclaimed interest deductions and capital losses of the decedent. The estate would seem to be the owner of the refund. See In re Carson, 83 N. J. Super. 287 (Cty. Ct. 1964). In the absence of any direction by the court for a remand to settle this issue, if there is thought to be any doubt about it, I take it for purposes of the ensuing discussion that the tax refund checks were beneficially the property of the decedent vis a vis Mrs. Hoffman.
In view of the foregoing, the agreement by Mrs. Hoffman to endorse any tax refund checks over to decedent was simply in recognition by her of his beneficial entitlement to any such money, and the exaction by him of the covenant by her was to prevent any later nuisance claim in that regard by her. One thing is plain. Decedent’s agreement to pay sup*89port money was not the bargained-for equivalent of a surrender by Mrs. Hoffman of any genuine claim of right by her to future tax refunds. It was in recognition of his legal obligation to render support to her enforceable by a court if pursued by her in litigation. The respective separate covenants mentioned were thus independent, not dependent, except to the limited extent expressly made dependent by the language of the agreement itself. The contract authorities cited in the majority opinion are therefore not applicable. Cf. Woodhouse v. Woodhouse, 15 N. J. 550 (1954).
More to the point, however, is the consideration that where insolvency of a debtor intervenes, and a statute governs the priorities of claims of creditors against an estate, whether that of a decedent or otherwise, the ultimate question of what the estate consists of for purposes of application of such a statute, in relation to- cross-claims between the estate and a creditor, is controlled by a well-established body of law not consulted by the majority opinion. Generally, a creditor may set off against a claim by an insolvent or his representative against it any “mutual” claim against the insolvent. See 34 C. J. S. Executors and Administrators § 718, pp. 704-705 (1942); N. J. S. A. 14A:14-8; Bankruptcy Act, Section 68, 11 U. S. C. A. § 108(a); Clapp, Wills and Administration, 7 N. J. Practice (1962) § 1262, p. 7, nn. 8 and 9; Nutz v. Murray-Nutz (Appeal of A. W. Crone & Sons), 109 N. J. Eq. 95 (E. & A. 1931); Receivers v. Paterson Gas Light Company, 23 N. J. L. 283 (Sup. Ct. 1852); Camden National Bank v. Green, 45 N. J. Eq. 546 (Ch. 1889), aff'd o. b. 46 N. J. Eq. 607 (E. & A. 1890). But the present case will be seen not to present an appropriate situation for set-off of mutual claims.
There has been diversity of viewpoint as to what constitutes mutuality of claims, in respect of questions such as whether the claims must arise out of the same transaction or be held or owing between original parties as distinguished from assignees, or the like; see, e.g., 66 Am. Jur. 2d “Receivers” § 457, pp. 260-61 (1973); Receivers v. Paterson *90Gas Light Company, supra; Harris v. White, 5 N. J. L. 422 (Sup. Ct. 1819). Such problems, however, do not concern us here. What does here matter is that it is thoroughly settled that the rule of set-off does not apply where the obligation to the insolvent estate is one of trust, gwasi-trust or constructive trust in relation to a specific fund or property beneficially belonging to the insolvent, and therefore to his or its representative. In such a case the trust obligor cannot set off against his obligation to perform his duty to the cestui que trust a money obligation due from the insolvent to him. The “claims” are not “mutual.” Morris v. Windsor Trust Co., 213 N. Y. 27, 106 N. E. 753 (Ct. App. 1914); In re Consolidated Indemnity & Insurance Co., 287 N. Y. 34, 38 N. E. 2d 119 (Ct. App. 1941); Rothstein v. Autorist A/S, 37 Misc. 2d 683, 236 N. Y. S. 2d 337 (Sup. Ct., N. Y. Co. 1963), aff’d o. b. 18 A D. 2d 1140, 239 N. Y. S. 2d 653 (Sup. Ct., App. Div. 1963); Perring v. Baltimore Trust Corporation, 171 Md. 618, 190 A. 516 (Ct. App. 1937); Fore Improvement Corporation v. Selig, 278 F. 2d 143 (2 Cir. 1960); In re Autler, 23 F. Supp. 756 (S. D. N. Y. 1938); Brust v. Sturr, 128 F. Supp. 188 (S. D. N. Y. 1955), modified on other grounds 237 F. 2d 135 (2 Cir. 1956).
The implicit salutary rationale of the rule last stated is apparent. A creditor cannot be allowed indirectly to improve his priority status as against other creditors of an insolvent estate by disguising a separate fiduciary obligation on his part as a “mutual” claim of the insolvent subject to set-off by him. The rule fits the facts here like a glove. On the factual assumption made above, the tax-refund cheeks were the property of the decedent, and Mrs. Hoffman was, entirely independently of the separation agreement, a quasi-trustee of them for decedent’s benefit. Were this a case where the husband or the estate was solvent, and a court was confronted solely with a default in support by him and a refusal to indorse the checks by her, a different situation would be presented and the result might well differ. But *91here an insolvency and claims by judgment creditors have intervened; the issue is not merely what constitutes equity as between contesting divorced wife and husband, but rather what is the correct adjustment, in the light of the decedents’ estates statute, of the competing claims of the wife and the judgment creditors over this fund — indubitably property of the. estate. The statute resolves that issue in favor of the judgment creditors. The courts must respect the statute.
If Mrs. Hoffman would have been regarded as a quasi-trustee of the fund for the estate in the absence of her covenant in the separation agreement, as she clearly would, she surely cannot qualify her fiduciary obligation in that regard merely because she affirmatively covenanted in the agreement to turn over the money.
It may further be noted that it seems arbitrary, in any event, to award Mrs. Hoffman half the balance of the fund. Ho one knows as yet what the Chancery Division would have allowed her on the support claim, having regard to the changed circumstances of the decedent after the divorce. Moreover, as the majority recognizes, she has not established a beneficial right in the money as either a joint tenant or a tenant in common. The logic of the court’s opinion as to dependent promises, if accepted at all, would permit at most a remand for the determination of the amount of the support claim as of decedent’s death, and allowance of that only. Allowance of one-half of the balance of the tax refund is arbitrary.
In reference to the added ground of decision proffered by the concurring opinion that the original judgment of divorce was a “judgment” within the “judgment creditor” priority established by N. J. S. A. 3A:24 — 2, this is contrary to the concession by appellant and in flat discord with existing law. In Madden v. Madden. 136 N. J. Eq. 132, 136 (E. & A. 1945), the highest court said: “In this state arrearages of alimony do not become vested in the former wife or take on the attributes of a judgment for the payment of a fixed sum until [the] court so orders. No such order was made in *92this ease. (Emphasis added.) The rule is based on the principle that arrearages are always subject to judicial revision retroactively as circumstances may justly require. 10 N. J. Practice,, Marriage, Divorce & Separation (Herr-Lodge 3d ed. 1963) § 650, p. 570; Step v. Slep, 43 N. J. Super. 538, 542 (Ch. 1957). These precepts were in effect at all times here involved. See Tancredi v. Tancredi, 101 N. J. Super. 259, 262-263 (App. Div. 1968). See also footnote 1, infra.
Reflection upon the purpose and intent of N. J. S. A. 3A:24-2, in the light of the foregoing, persuades that the view of the concurrence is incompatible with the statute. The latter contemplates that as a matter of policy a claim of whatever nature reduced to a money judgment as of a fixed date should have priority as against other money judgments entered later and as against all claims regardless of antecedence in origin if not fixed in a pecuniary adjudication. Suc'h a rule permits the representative of the estate by a search of the records to know with certainty how to distribute the estate as between judgment creditors and others.1
*93It is not for the courts to quarrel with the legislative policy decision so long as that decision is reasonably clear — as here I think it is. The statute is neutral in respect of the relationship of the creditor to the insolvent decedent — be it a wife claiming alimony or former employees claiming breach of contract under a retirement plan (as apparently the case as to one of the judgments here). If the intent of the concurring opinion is that the unadjudicated arrearages calculated down to the date of insolvent’s death, nunc pro tunc as of the date of the support orde in 1965, are to be considered a judgment in that amount and on that date for purposes of N. J. S. A. 3A :24-2, the statutory priority policy is obviously subverted. If the intent of that opinion is, rather, to set priorities in amounts due, and as of dates when, petitions to fix arrearages were filed, there is still conflict with the statutory purpose and object ■ — • but also, no attempt in the opinion to compare such amounts and dates with those of the three contesting judgments in order to settle out the priorities. Moreover, either hypothesized version of the concurrence conflicts with the theory of the result in the majority opinion, in which the concurrence joins, awarding a flat one-half of the balance of the fund to the wife.
I would affirm the judgment of the Appellate Division as modified to allow the claim of Brooks.
Justice Mountain joins in this partly dissenting opinion.
*94For reversal and remandment — Chief Justice Wein-traub and Justices Jacobs, Proctor, Hall and Sullivan —5.
For affirmance in part ■— Justice Mountain and Judge Coneobd — 2.
The casos cited in footnote 1 of the concurring opinion, taken collectively, do not establish present law to be, as there implied, that unadjudicated arrearages of alimony automatically become judgment liens as they accrue. Indeed, Joseph Harris & Sons, Inc. v. Van Loan, 23 N. J. 466 (1957), apart from the enigmatic dictum therein quoted in the concurrence, not only holds that unadjudicated alimony arrearages do not constitute a judgment upon which execution can issue (at 471) but it also deliberately declares, and says such has been New Jersey law for a century (at 471), that it requires the fixing of such arrearages in a stated amount by judgment, and the entry of that judgment in the civil docket, to constitute the arrearages a lien (at 472). The holding in Rooney v. Rooney, 102 N. J. L. 551 (Sup. Ct. 1926), was precisely to the same effect, and this has always since been regarded as the law. See Welser v. Welser, 54 N. J. Super. 555, 562-563 (App. Div. 1959) (per Schettino, J. A. D., later Justice of this Court) ; Hartman, “Domestic Relations”, 16 Rutgers L. Rev. 261, 272, 273 (1962). Welser cites with approval (54 N. J. Super. at 561) the well-reasoned holding in Dufy v. Dufy, 19 N. J. Misc. 382, 19 A. 2d 236 (Ch. 1941), directly in point on the instant issue, *93that a wife has no vested right to unadjudieated arrears of alimony-under a separation decree against the executors of her deceased husband.
The obscure dictum to the contrary in Warren v. Warren, 92 N. J. Eq. 334, 336 (Ch. 1921), cited in the concurrence, has never been followed; it plainly misread Section 44 of the old Chancery Act (Comp. Stat. 1910, p. 425; now N. J. S. 2A:16-18; 19; 20) ; and the express declaration in Joseph Harris & Sons, Inc., supra, mentioned above (23 N. J. at 472), of course has the effect of overruling it.