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*It may be observed, that the term "set-off” is somewhat inaccurately used in cases of this kind. The proper use of that expression seems applicable only to the mutual demand of debtor and creditor. A right of this nature is rather a right to pay out of the fund in hand, than a right to set off. And such right of payment can only arise where there is a right to receive the debt so to be paid ; and the legacy or fund so to be applied in payment of the debt must be payable by the person entitled to receive the debt (1). Accordingly, in

an attaching creditor of the legatee may raise the objection. Holt v. Libby, 80 Me. 329. This is true also in Pennsylvania, although the debt is barred by the Statute of Limitations at the time of distribution, but not at testator's death. Estate of Light, 136 Pa. St. 211.

The set-off of the legatee's debt is available against a bona fide assignee of the legacy, Estate of Dull, 137 Pa. St. 116 ; or a creditor of the legatee, Armour c. Kendall, 15 R. I. 193 ; Strong 0. Bass, 35 Pa. St. 333 ; Nickerson v. Chase, 122 Mass. 296 ; and creates an equitable lien upon the legacy prior to that of a judgment creditor of the legatee. Irvine 0. Palmer, 91 Tenn. 463.

It is also available against his children, taking simply as his next of kin on his death before distribution, Matter of Bogart, 28 Hun 466 ; or against the debtors, descendants, taking the leg. acy under the statute, which saves lapse of legacy in favor of descendants or other legatees, Denise 0. Denise, 10 Stew. (N. J.) 163; disapproving Carson 0. Carson, 1 Met. 300, unsound in its main premises” because it held the set-off to be founded upon equities wholly extrinsic, and having no connection with the Will," whereas “the law of the land constitutes a part of every Will,” Van Fleet, V.-C. But in a like case in Wallace 0. Dubois, 65 Md. 153, the court distinguished between debts shown to have been created by way of advancement (as to

which set-off was allowed) and other debts, which were left to their remedy against the estate of the original legatee. And in a legacy to A. and her children, “the debts of the husband to be deducted from any legatee's share,” A.'s share only, and not the children's shares, will be subject to the debt of A.'s husband ; Cannon 1. Apperson, 14

1 Lea 553. In Jennings v. Barry, 5 Dem. 531, however, the set-off of A.'s debtor was allowed against the issue of A., who were substituted by the terms of the will on A.'s death before the life tenant, A.'s legacy being held to have vested in him (subject to divest on bis death before the prior life estate ended) and so become subject to the set-off of his debt.

(1) Cherry v. Boultbee, 4 M. & Cr. 442, 447, per Lord Cottenham, and see Re Briant, 39 C. D. 471, 479. Re Akerman, [1891] 3 Ch. 212, 219. In the case of Re Akerman (ubi sup.), Kekewich, J., says : “The principle to be found laid down in Cherry v. Boultbee (ubi sup.), and also in Courtenay v. Williams (3 Hare, 589), and, no doubt, if search were made, in many other cases, is that a person who owes an estate money, that is to say, who is bound to increase the general mass of the estate by a contribution of his own, cannot claim an aliquot share given to him out of that mass, without first making the contribution which completes it. Nothing is in truth retained by the representative of the estate :

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Cherry v. Boultbee (m), Thomas Boultbee was indebted to Catherine Boultbee, his sister, in the sum of 1,878l.: He became bankrupt, and shortly after his bankruptcy, Catherine made her will, whereby she gave legacies of 5001. and 2,000l. to her executors, in trust to pay the interest thereof, (as to the 5001, after the decease of her mother, to Thomas Boultbee for his life, without power of anticipation, and free from his debts ; and after *his decease to pay the principal to such persons as he should appoint, and in default of appointment to his executors and administrators, for his and their own use and benefit : The testatrix did not prove her debt under her brother's commission : He died without having obtained his certificate, and without having attempted to make any appointment: Lord Langdale, M. R., held (overruling the case of Ex parte Mann (n), before Sir J. Leach), that the executors of the testatrix had no right to set off the debt due from Thomas Boultbee to the testatrix against the legacies, but that the assignee of Thomas Boultbee was entitled to so much of the legacies as the assets were sufficient to pay: And this decision was confirmed by Lord Cottenham on appeal : And his lordship observed, that the bankruptcy of the debtor having taken place in the lifetime of the testatrix, ber executors never were entitled to receive from the assignees more than the dividends of the debt; and as the bankrupt never obtained his certificate, he was never entitled to receive the legacy : consequently there never was a time at wbich the same person was entitled to receive the legacy and liable to pay the entire debt ; and therefore the right of retaining a sufficient sum ont of the legacy to pay the debt could never have vested in anyone ; though the assignees would have been bound to allow the amount of any divi. dend on the debt, if it had been proved (o).— *It will be seen that in this case the claim for the legacy arose after the bankruptcy, at a time

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nothing is in strict language set off'; but the contributor is paid by holding in his hand a part of the mass, which, if the mass were completed, he would receive back," p. 219.

(m) 2 Keen, 319; affirmed on appeal, 4 M. & Cr. 442.

(n) Mont. & M'Arth. 210.

(0) Cherry v. Boultbee, 4 M. & Cr. 442, 448. These observations were regarded by Shadwell, V.-C., in Bell v. Bell, 17 Sim. 127, as decisive of a case where one of the creditors of an in

solvent died intestate, leaving the insolvent one of his next of kin: The debtor had, in the lifetime of the intestate, taken the benefit of the act, and had been discharged, having entered the debt in question in his schedule : and the V.-C. held, that the administrators of the creditor were not entitled to retain the debt out of the insolvent's distributive share of the creditor's estate. Cherry o. Boultbee has been twice followed by Hall, V.-C. in Re Hodgson, 9 C. D. 673, and Re

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when the claim of the testatrix, in respect of the debt due from the bankrupt, was merely a right of proof against his estate in the hands of the assignees : And the decision, therefore, does not apply to a case where the right to receive and the liability to pay both existed at the time of the bankruptcy (). Where, in truth, the cross demands are essentially in different rights, it is a general rule, of equity as well as law, that one of such demands cannot be applied in satisfaction of the other (unless the right to do so be conferred by agreement, express or implied, which the court has thought itself justified in presuming from slight circumstances (7)): Accordingly, in Freeman v. Lomas (r), where an executor and trustee of a legacy, who was also residuary legatee, had become a creditor of the husband and administrator of the deceased legatee in respect of debts incurred since he had become her administrator : it was held by Turner, V.-C., that as there were no circumstances from which an agreement to set off the one demand against the other could be presumed, the debt could not be set off against the legacy (though assets were admitted): because the claims existed in different rights.

It does not seem necessary here to consider in detail, how far the right of set-off by the executor extends, in case of a legacy to a married woman, with respect to debts due legacy to a feme from her husband to the testator, because the result band is indebted of the Married Women's Property Act, 1882, is that estate. a woman married after the commencement of that act (s) will be entitled to hold as her separate property all real and personal property belonging *to her at the time of marriage, or acquired by or devolving upon her after marriage (t), and therefore her husband will have no interest in legacies left to her.51 Moreover, a woman married Orpen, 16 C. D. 202. As regards the (p) Lee v. Egremont, 5 De G. & Sm. retainer of anything in respect of a 348, 368. See Bousfield r. Lawford, 1 dividend under a bankruptcy, the court, De Gex, J. & S. 459. will not necessarily in every case of a (9) Freeman ”. Lomas, 9 Hare, 109, bankrupt legatee direct in making its 114. order that some sum shall be deducted (r) 9 Hare, 109. by the executor on account of a divi- (8) 1 Jan. 1883. dend. It will only do so when it has (1) 45 & 46 Vict. c. 75, s. 2. been ascertained who are the creditors 51. As property is now held indeclaiming, what is the amount of the pendently by married women in the assets, what the costs of the bankruptcy, United States, a husband's debt cannot and what the amount of the dividend, be set off against a wife's legacy, Kenso that the amount to be deducted or nedy v. Badgett, 19 S. C. 591 ; although allowed can also be ascertained. Re it would be otherwise if expressly Hodgson, 9 C. D. 673, 676.

directed by the will, Hurlbut v. Hutton,

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before the commencement of the act will be entitled to all real and personal property as her separate property, her title to which accrues after the commencement of the act (u), though not to property whether vested or contingent and whether in reversion or remainder, her title to which was acquired before, though it falls into possession after, the commencement of the act (a).

Generally, it may be stated that the result of the authorities appears to be, that before the Married Women's Property Act, 1882, where a debt to the estate of a testator might be set off by the executors against a legacy bequeathed by the testator to his debtor, such debt might also be set off against a legacy bequeathed by the testator to the wife of the debtor, subject to her equity (if any) in the legacy (y).

In Harvey v. Palmer (z), leaseholds had been bequeathed for the legatee's personal support and maintenance, and to be entirely free from any claim, charge or demand of his creditors : And Knight Bruce, V.-C., held that the leaseholds could not be withheld from the legatee until he paid a debt due from him to the testator; for that the testator had expressed that which was equivalent to a declaration of intention that they should not be so withheld : And his honor seemed to doubt whether, in any case, where a specific legatee is indebted to the testator, the legacy can be withheld till the debt is paid.

2. The effect of appointing a debtor to be executor. It will be convenient to consider this subject, first, as to *the effect at common law, of the testator's appointing his debtor to be his executor; and then as to the effect in equity. 52 15 Stew. (N. J.) 15 ; or if the debt was Ranking o. Barnard, 5 Madd. 32. Re for the purchase of property for her Briant, 39 C. D. 471. or secured by her joinder as maker (2) 4 De G. & Sm. 425. or indorser of the husband's notes, 52. The substantial result appears to Chaffee v. Maker, 17 R. I.) 739. So, be the same in either case. In some conversely, a wife's debt can be set off states, as in New York by statute, the against a legacy to the husband. Hurl- executor must account for it as assets, but v. Hutton, supra.

and his appointment is no legal release (u) Ibid. s. 5.

or extinguishment of the debt, N. Y. (x) Reid r. Reid, 31 C. D. 402, and 2 R. S. 84, § 13; Matter of Leslie, 3 ante, p. *662.

Redf. 280 ; Adair v. Brimmer, 74 N. Y. (y) McMahon v. Burchell, 5 Hare, 539 ; or of collateral securing it, Sover325. M'Cormick v. Garnett, 2 Sm. & hill v. Suydam, 59 N. Y. 140; or of the G. 37. Elibank v. Montolieu, 5 Ves. debt of the executor's firm, Matter of 737. Carr v. Taylor, 10 Ves. 574. Ex Consalus, 95 N. Y. 340. But the executor parte O'Ferrall, 1 Glyn & Jam. 347. may show his bona fide inability to pay,

At common law.

Inasmuch as the rules of equity, where before the Judicature Acts there was any conflict between them and the rules of common law, prevail (a), the effect at common law of the appointment by a testator of his debtor to be his executor does not require to be stated at length. Generally it may be stated that an appointment by the testator of his debtor, whether he was a sole debtor or one of several joint debtors, or even one of joint and several debtors, his executor, operated as a release or extinguishment of the debt : The principle being that a debt is merely a right to recover the amount by way of action, and as an executor could not maintain an action against himself, his appointment by the creditor to that office suspended the action for the debt : And where a personal action is once suspended by the voluntary act of the party entitled to it, it is forever gone and discharged. Thus if the obligee of a bond makes the obligor his executor, this amounts at law to a release of the debt (6).

Nor is the case varied by the executor dying without having either proved the will or administered (bb), for in such a case also the debt is extinguished and the administrator cum testamento annexo can bring no action for it. There seems to be some doubt whether the debt of a sole executor who does not administer and refuses probate was at common law released (c): but the debt of one of several executors who refused was released if the others administered (cc), for

subject, however, to being afterward Charles v. Jacob, 9 S. C. 295. And an sued without protection of the Statute of order for sale of land to pay debts, proLimitations. Baucus o. Stover, 24 Hun cured by him in disregard of his own 109. In other states, as in equity, the debt to the estate, which would have executor is required to account for the sufficed to pay the debts, is a devastavit. amount of his debt as assets in his hands, Farys v. Farys, 1 Harp. Ch. 261 ; Winship v. Bass, 12 Mass. 198 ; Wood Chapin v. Waters, 110 Mass. 195. V. Tallman, Coxe, 153 ; Leland v. (a) Judic. Act. 1873, s. 25, sub-s. 11. Felton, 1 Allen 531 ; Eichelberger v. See per Lord Cairns in Pugh v. Heath, Morris, 6 Watts 42; Griffith v. Chew, 7 App. Cas. 237. 8 Serg. & R. 32 ; on the same footing (6) Needham's Case, 8 Co. 136, a. as debts of other parties, McCarty v. (bb) Wankford v. Wankford, 1 Salk. Frazer, 62 Mo. 263; although a note 299. Wentw. Off. Ex. c. 2 (14th edit.). previously given for the debt may as Com. Dig. Admon. (B. 5). such be extinguished.

Tarbell v. (c) Wankford v. Wankford, 1 Salk. Jewett, 129 Mass. 457. Such debt is 307. See contra, Abram v. Cunningavailable as assets for the residuary lega- ham, 2 Ventr. 303, and Butler's notes tee as well as creditors, Pusey v. Clem- to Co. Lit. 264, 6. son, 9 Serg. & R. 203 ; and may be (cc) 1 Salk. 308. Bac. Abr. Tit. enforced against the executor's estate Exors. (A.) 10, note to Cabell v. by an assignee or successor in office. Vaughan, 1 Saund. 291.

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