Bishop v. Dillard

• Decision Date: 25 June 1887
• Citation: 5 S.W. 341,49 Ark. 285
• Parties: BISHOP v. DILLARD
• Court: Arkansas Supreme Court

5 S.W. 341

49 Ark. 285

BISHOP v. DILLARD

Supreme Court of Arkansas

June 25, 1887

APPEAL from Howard Circuit Court, H. B. STUART, Judge.

Judgment reversed and cause remanded.

Jones & Martin for appellant.

The answer set up as a defence a verbal understanding and agreement that is contradictory of the written contract. This cannot be done. The administrator sustained the relation of a trustee to the estate. The sale by him was a judicial sale and not complete until confirmation. 32 Ark. 391; 45 id., 41.

To allow such an agreement to be enforced would interfere with the due course of administration. A claim due from an intestate to a creditor cannot be off-set against a demand due the administrator. 12 Ark. 380.

OPINION

SMITH, J.

Harmon Bishop, as administrator of W. W. Bishop, sued the makers of two promissory notes, each for the sum of $ 388.75 and payable to himself as such administrator. The answer alleged that the notes were made for the purchase money of certain lands sold by the administrator; that the purchaser, Dillard had a probated demand against the estate of the plaintiff's intestate for $ 2500 and that at the time of the sale, he had a verbal understanding and agreement with the plaintiff that payment of the notes would not be exacted but that Dillard might retain the amount thereof on his claim; that the plaintiff in his representative capacity had conveyed the lands to Dillard, but had refused to surrender the notes, pursuant to said agreement; that the estate is insolvent and plaintiff had wasted its assets. And it was prayed that the cause might be transferred to equity, and the plaintiff be required specifically to perform his agreement.

To this answer a general demurrer was overruled; the plaintiff rested; final judgment went against him; and he appealed.

It was decided in Bizzell v. Stone, 12 Ark. 378, that a debt contracted by an intestate cannot be set off against one contracted with his administrator in favor of the estate, because it interferes with the course of administration, and may defeat or postpone the payment of other creditors of the same class, or even of a preferred class.

The question then arises, what effect can the agreement of the administrator have to vary this rule of law? It is to be observed, in the first place, that the answer sets up a verbal agreement that is contradictory of the written contract. And, in the second place, an administrator...