86 Tenn. 224 | Tenn. | 1887
Complainant’s intestate, Thos. Peters, pledged as collateral to secure a note for four thousand one hundred and fifty dollars, due the de
Peters died in September, 1883. Complainant administered on his estate, suggested its insolvency, and demanded the stock, offering to pay the note. This demand was refused, upon the ground that defendant had sold the stock March 6th, 1884, for six thousand dollars. The administrator then demanded the excess for which the stock had sold over the amount of the note due from the intestate. This was likewise refused, the defendant claiming the right to retain and ' apply this excess on another debt due it from Thos. Peters. Thereupon this bill was filed, alleging substantially the facts stated, and seeking a recovery of said excess.
The Chancellor decreed in complainant’s favor, and defendant appealed and assigned errors.
The defense is based upon Sections 3242, 3243, and 3219 of the new Code. The last section provides that “the balance of accounts between the deceased and any creditor or debtor, after allowing any just credits or set-off, shall be taken as the true amount due to or from the estate,” and the other two sections are 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*226 from the testator or intestate at the time of his death.” Section 8242.
“If there should he any surplus due the defendant, the Justice of the Peace or Court trying said cause shall give judgment in favor of. the defendant for said surplus, which judgment shall be filed as other claims with the administrator or Clerk of the Court for a pro rata allowance.”
Under these sections it is insisted that in “all suits” by executors or administrators of insolvent estates a set-off may be had, and that it is only after an adjustment of all claims between the defendant and intestate that the “balance of accounts” would remain recoverable, and that therefore to this claim for the surplus arising under the sale the defendant may set off' the debt not secured by pledge.
The sections are not properly susceptible of this construction. They were intended to effectuate an adjustment of debts and accounts actually due to and from the intestate at the time of his death. In this case there is an entirely different state of facts than that to which the sections apply. Here certain property was pledged as security for a given debt. When the debtor died the property remained as it was when pledged. It belonged to his estate, encumbered, however, with the charge put upon it by the intestate for the payment of this particular debt. The defendant did not owe the property or its value to the estate as a debtor. It occupied the position of trustee of the stock, and as such held it for the estate. The fact that it
The decree is affirmed with cost.