21 S.E.2d 702 | Ga. | 1942
1. The legal sufficiency of an answer in the nature of a cross-action can not be tested by motion for new trial.
2. Under the equitable principles stated in the Code, § 37-308, a defendant sued in equity by an administrator may set off as against such administrator a promissory note of the decedent, of which the defendant became the equitable owner before the action was begun, although legal title to such note was acquired by formal assent of an executor pending the suit, since it appears that at the time the action was instituted the executor held only the naked legal title, and the defendant was the beneficial owner.
3. Where in a suit in equity by an administrator a defendant seeks a judgment on a cross-action greater in amount than the demand against him, the administrator, pursuant to the provisions of the Code, § 81-802, "may reply by showing that the estate is insolvent, and that there are outstanding debts, of higher dignity than the defendant's set off, sufficient to exhaust the assets;" and where this is not done, the objection *302 to such a judgment that it is in violation of the priorities established by law in the order of paying debts of a decedent's estate, made as a ground of motion for new trial, will not be considered good.
2. The further point is made that the note was not a proper subject-matter of set-off, because the defendants did not have legal title to it at the time suit was instituted, but acquired such title pending the action. "Between the parties themselves any mutual demands, existing at the time of the commencement of the suit, may be set off." Code, § 20-1302. "A plea of set-off is not good unless it alleges facts showing that the demand against the plaintiff which the defendant therein seeks to set up was in existence and due to the latter by the former at the time his action was begun." Walters v. Eaves,
3. The next claim of error rests upon the contention that to allow the judgment against the administratrix "would be to grant a preference to the defendant over other creditors or persons holding claims against the estate of Robert Nixon." The Code, § 81-802, declares: "When a defendant pleads a set-off of a larger amount than the demand of the testator or intestate, the plaintiff may reply by showing that the estate is insolvent, and that there are outstanding debts, of higher dignity than the defendant's set-off, sufficient to exhaust the assets, for the purpose of protecting the executor or administrator from an absolute judgment." The provisions of this section were applied in Bass v. Gobert,
Judgment affirmed. All the Justices concur.