134 Tenn. 17 | Tenn. | 1915
delivered the opinion of the Court.
This case comes before us upon an agreed statement of facts which recites:
J. N. Conquest died January 30, 1913, intestate and insolvent, in Davidson county, Tennessee. The complainant, Nancy E. Conquest, is his widow. He also left several children. At the time of Conquest’s death he had on deposit in the Broadway National Bank $436.82, and the bank held his note for $400 which was due March 17, 1913.
' One W. H. Balthrop qualified as administrator of Conquest’s estate, and on February 12, 1913, drew a check on the Broadway National Bank for the amount of this deposit. The bank refused to pay this check, and informed the administrator that it had applied $400 of the deposit to the payment of Conquest’s note,
The widow then filed this suit. The bank answered, and paid into court the balance of the money in its hands belonging to deceased, less the amount of his note, and denied liability for anything else.
The chancellor held that the widow’s claim to her husband’s balance in the bank was superior to the bank’s right of set-off, and rendered a decree in her favor. This decree was affirmed by the court of civil appeals. *
The court of civil appeals was of opinion that the bank had no lien on the deposit to secure the indebtedness of deceased to it, and said:
“In the absence of a lien in favor of the bank on such deposit, we are of opinion that the complainant’s right, as widow of her deceased husband, which is fixed by the statute, passed for the very purpose of protecting widows and those dependent upon them by giving to them a year’s support to enable them to main*21 tain themselves and families, notwithstanding the estates of their husbands may be indebted to insolvency, is superior to the bank’s right of set-off.”
The case comes before ns on petition for certiorari filed by the bank.
The relation between bank and depositor is that of debtor and creditor. Harris v. Bank, 110 Tenn., 249, 75 S. W., 1053; Wagner v. Bank, 122 Tenn., 164, 122 S. W., 245, 135 Am. St. Rep., 869, 19 Ann. Cas., 483.
The agreed statement recites that Conquest died insolvent. This being so, at the time of his death the bank had the right to set off the note it held on him against his deposit, even though the note was not yet due. This has been settled in Tennessee by the case of Nashville Trust Company v. Bank, 91 Tenn. 350, 18 S. W., 822, 15 L. R. A., 710.
It is immaterial whether this right of the bank to apply his deposit to the satisfaction of a debtor’s obligation be called a lien or not. It is referred to as a lien in Wagner v. Bank, supra, although in 3 Ruling Case Law, pp. 592, 593, it is said that such right is not, strictly speaking, a lien. .
The bank had this right of set-off against the deceased prior to the maturity of his note upon his insolvency appearing, and it would have had such a right against his assignee for the benefit of creditors or against his trustee in bankruptcy. Nashville Trust Company v. Bank, supra; New York County National Bank v. Massey, 192 U. S., 138, 24 Sup. Ct., 199, 48 L. Ed., 380.
It seems that, the right of the hank to set-off against the administrator being clear, the bank cannot be deprived of this right by the assignment of the deposit to the widow as her year’s support. She claims through her husband just as much as the administrator would have done had this suit been brought in his name, and the bank’s right of set-off, good against the deceased, is likewise good against any one claiming through the deceased.
Our statute with reference to the administration of insolvent estates provides for the right of set-off as follows:
“In all suits by the executor or administrator of any deceased person, the insolvency of whose estate has been suggested, the defendant may plead a set-off of whatever amount may be due him from the testator or intestate at the time of his death.” Shannon’s Code, sec. 4137.
This statute has been said to be only declaratory of the previous law. Richardson v. Parker, 32 Tenn. (2 Swan), 529. It is not therefore to be narrowly construed. While it deals with matured obligations, it
The statute providing for setting apart a year’s support to the widow is in these words:
“Upon the application of the widow of an intestate, or of a widow who dissents from her husband’s will, the county court shall appoint three freeholders unconnected with her either by consanguinity or affinity, who, being first duly sworn to act impartially, shall set apart so much of the crop, stock, provisions, monies on hand or due, or other assets, as may be necessary for the support of such widow and her family until the expiration of one year after the decease of her husband.” Shannon’s Code, sec. .4020.
It will be noticed that this statute provides that the .year’s- support shall be set apart out of property on hand or due. This provision is literally construed by this court. Johnson v. Henry, 59 Tenn. (12 Heisk.), 697; Bayless v. Bayless, 44 Tenn. (4 Cold.), 359. Money on deposit in a bank to which the deceased is indebted, and against which deposit the bank has a right to set off its claim on the deceased, cannot be characterized as- money on hand or due, in the sense of the statute, and is therefore not such property as may be assigned to the widow for her year’s support.
This conclusion seems inevitable and is sustained by Railroad v. Kennedy, 90 Tenn., 187, 16 S. W., 113.
