| Ill. | Apr 15, 1859
The demurrer of the appellant to second replication of the plaintiff below to the defendants’ plea of set-off, presented this question for the decision of the court below: Does the 115th section of chapter 110 R. S., title “ Wills,” (Scales’ Comp. 1206) absolutely bar a claimant from all rights of recovery or set off, for the reason that he did not present his claim to the court for allowance, within two years from and after the grant of letters of administration ?
By sustaining the demurrer, the court decided it was an absolute bar and in this, erred.
As we understand that section and as it has been construed by this court and as its plain language seems to import, a claim is not barred, if not presented within two years, but simply the right to claim a distributive share in, or any participation out of the property actually inventoried. Judy v. Kelly, 11 Ill. R. 211; Bradford v. Jones, 17 ib. 93.
A plea of set-off is nothing more nor less than a cross action, and if in the action the claimant would not be barred of a recovery, so neither can he be barred from pleading his set-off. The principle is the same in such case, whether he be actor or reus, for it is the balance only which may be due from the one to the other, which constitutes the real claim for or against an estate.
The debt in this case against the intestate was contracted in his lifetime, and to its extent, extinguished the debt due from the claimant to the intestate. The presentation of the claim to the administrator within the two years could only have the effect of notifying him there was such a claim against the estate, and enabling the claimant to share in the effects actually inventoried, but it would contribute in no degree to the validity of the claim.
The ground on which the set-off is admitted is that to the extent of the claihi presented as a set-off, if proved, there is a mutual extinguishment of the demands of the respective parties.
The various provisions for the distribution of the estates of decedents, in our statute of “ Wills,” from section 95 to section 137, are for the purpose not only of liquidating the demands existing between the intestate and his creditors, at the time of his death, but for ascertaining balances. If the balance be against the estate it is to be so entered by the court that the condition of the estate may be known, and if insolvent that the creditor may receive his dividend. If the balance be against the creditor, there is no entry of that fact made by the court, for balances against the estate only, are to be found and entered. In such case, if the executor or administrator sue, such creditor must have the right, resulting from the design of the statute itself, to plead his own demand by way of set-off, and the executor or administrator can only recover the balance, for that balance is all that is due the estate. If a creditor claims a balance in his favor, and it is so found, we see no reason why a judgment may not pass against the executor or administrator for such balance, to be paid as other debts against the intestate, out of assets to be discovered and inventoried, and this, to avoid an unnecessary suit. The result of this reasoning is, that a party bringing suit against an executor or administrator and proving his claim, is entitled to a judgment, whether his claim was presented within two years or not, provided it be not barred by the general act of limitations. If he docs exhibit it, his judgment is to be satisfied in due course of administration of the estate inventoried. If he does not exhibit it, then his judgment is to be satisfied out of such property as may be subsequently discovered and inventoried. If, instead of suing, he is sued by an executor or administrator, he can plead his claim by way of set-off, and the balance be adjudged to him to be paid out of any estate thereafter discovered or inventoried.
The judgment of the Common Pleas is reversed, and the cause remanded, for further proceedings not inconsistent with this opinion.
Judgment reversed.