5 Ind. App. 183 | Ind. Ct. App. | 1892
Huffman sued "Wyriek on two promissory notes, executed by the latter to one Flora B. Vancleve. It is alleged in the complaint that the plaintiff and the payee of said notes intermarried, and she subsequently died intestate, without issue, leaving the plaintiff as her only heir at law; that her estate was duly administered in the Steuben Circuit Court, and upon final settlement the administrator, pursuant to an order of said court, assigned and transferred the notes to the plaintiff as part of the assets of the estate.
An answer was filed consisting of three paragraphs, the first of which was the general denial, the second a plea of payment, and the third was a set-off, alleging that the payee of the notes, at the time of her death, was indebted to the defendant in a sum greater than the amount of the notes for board and lodging furnished by him to her at her request; that said indebtedness was due and unpaid. A bill of particulars was filed with the answer.
The cause was put at issue and tried by the court. At the request of the'plaintiff the facts were found specially, and the conclusions of law stated separately. The defendant was awarded judgment for costs, and the plaintiff appeals. All of the questions discussed by appellant’s counsel arise upon the exceptions to the conclusions of law. Briefly stated the finding of facts is as follows: The notes sued upon were given to the decedent by the appellee for borrowed money, one before her marriage and the other after, and at the time of the trial they amounted to the sum of $180.38, including attorney’s fees; that the decedent was a sister to appellee’s wife, and she boarded with appellee for 252 weeks between the years 1882 and 1887 ; that her board during that period was worth two dollars a week, and had never been paid for; that she was a minor during the first year she so boarded with appellee, and had an estate of several hundred dollars, which was in the hands of her mother,
It was further found that decedent died intestate and without issue in November, 1888, and appellant was her only heir at law; that her estate was duly administered by the Steuben Circuit Court, and was finally settled in March, 1891, when the notes in controvei’sy were assigned and transferred to appellant as part of the assets of the estate; that he received no property from decedent except what he received*from the settlement of her estate; that appellee was a resident of Steuben county, but filed no claim against the estate of said decedent for her board, and never demanded payment therefor from the administrator ; that there was due appellee from decedent at the time of her death, upon the account set out in. the third paragraph of answer, the sum of $378, which has never been paid.
As a matter of law the court concluded that appellee was entitled to his claim for board to the extent necessary to liquidate the notes, but was not entitled to judgment for the overplus.
Appellant first insists that there having been no express agreement upon the part of the decedent to pay for
The element of kinship in the case was important only as bearing upon the question whether the decedent lived in appellee’s family as a member thereof, and the court having found that she did not so live, that element must
It is next insisted that appellee’s claim was barred by the settlement of the decedent’s estate, and it can.not now be collected or asserted as a set-off against his notes. Section 2310, R. S. 1881, as amended by the legislature in 1883 (Acts 1883, pp. 153-4), provides that all claims not filed thirty days before the final settlement of an estate shall be barred except in certain cases. The claim in this case does not fall within any of the exceptions, and if appellee were seeking judgment upon it against appellant as the heir of the decedent, thei’e is no doubt that it would be barred. Roberts v. Spencer, 112 Ind. 81. But here it is being asserted as a set-off against a debt held by appellant as the heir of the decedent, and a different rule obtains. A set-off is not barred by the general statute of limitations to the extent of the sum sued for, and may be asserted as a defence, though a separate action could not be maintained upon it. Warring v. Hill, 89 Ind. 497; Armstrong v. Cæsar, 72 Ind. 280; Fox v. Barker, 14 Ind. 309.
Section 352, R. S. 1881, provides that where “ cross-demands have existed between persons, under such circumstances that one could be pleaded as a counter-claim or set-off to an action brought upon the other, neither can be deprived of the benefit thereof by the assignment or death of the other, and the two demands must be deemed compensated, as far as they equal each other.” This statute gives the right to the holder of any such claim to treat it as having liquidated an equal amount of the other claim upon the death of the holder of the latter. Ho one would question the right of the appellee, if he had actually paid the notes to the decedent during her lifetime, to plead such payment in this action; and the statute above quoted gave him the right to treat the notes
But where a debtor has had no opportunity to assert a claim in his favor as a set-off' against a debt due from him to an estate pending the administration of such estate, he may do so after the settlement, against a distributee.
There is no error.
Judgment affirmed.