Lay v. Mechanics' Bank

• Citation: 61 Mo. 72
• Parties: JAS. H. LAY, Adm'r of JOHN H. LEACH, Appellant, v. THE MECHANICS' BANK, Respondent.
• Decision Date: 31 October 1875
• Court: United States State Supreme Court of Missouri

61 Mo. 72

JAS. H. LAY, Adm'r of JOHN H. LEACH, Appellant,

v.THE MECHANICS' BANK, Respondent.

Supreme Court of Missouri.

October Term, 1875.

Appeal from Benton County Circuit Court.

Cline, Jamison & Day, and A. C. Barry, for Appellant.

I. Plaintiff sues on a demand accruing since the death of his intestate. The notes, according to the answer, were all due before his death. In such case it is well settled that the latter cannot be set off against the former. (Chit. Contr., 849; 2 Will. Ex's, 1700; Woodward vs. Thornton, 8 Mo., 161; White vs. Henly, 54 Mo., 592.)

Lay & Belch, and James H. Lay, for Respondent.

I. The affidavit required by the claimant in making proof, must state that claimant has given the estate credit for all payments and off-sets to which it is entitled, and the claimant can only be allowed the balance after making such deductions. (Wagn. Stat., 103, §§ 12, 13.) Suppose that A. owes B. on a note for $1,000, and B. owes A. the same amount on an open account, and A. dies. B. can make no claim against the estate of A. for the reason that the estate owes him nothing; his claim is liquidated by the demand for the same amount. This requirement plainly means that where the off-sets balance the demand, the one shall liquidate the other. It certainly does not authorize the administrator-- when the accounts so balance and presentation of the demand would show no indebtedness from the estate--to wait till the demand against the estate would be barred by time, and then sue the creditor, without the right on his part to set up the off-set. The statute relating to set-off (Wagn. Stat., 1274, § 3) clearly authorizes such defense, even though the special limitation law has interfered.

NAPTON, Judge, delivered the opinion of the court.

This suit was commenced in 1870. The petition alleged that Leach died in June, 1861, and that in April, 1863, letters of administration were taken out by his widow, Rachel Leach, and that her marriage in 1869 revoked these letters, and that in 1870, letters de bonis non were granted to plaintiff, Lay.

It is alleged then, that Leach owned 31 shares of stock in the Mechanics' Bank; that since his death dividends have accrued and been declared on this stock amounting to $2,000; and judgment is asked for this. It is further averred, in what may be termed a second count, that Leach deposited in the bank $900; that since his death a demand was made for this, which was refused; and a judgment is asked also for this sum.

The answer admits all the facts stated--except that it alleges the dividends to have been only $1,472.50 instead of $2,000--but sets up as a defense that Leach owed the bank $8,000 on paper discounted for him, and that under their charter and by-laws they had a lien on his stock and dividends, and after allowing his claims he was still in their debt $6,300.

In the replication it is set up that all these claims of the bank were never presented to the Probate Court, never allowed and that they were all barred by the statute, which requires claims to be presented within three years.

On the trial there was evidence about the by-law referred to, and the notes of Leach were all produced and proved. But the instruction given and refused will show the points of law decided. All the instructions asked by plaintiff were refused. They are these:

“1st. After the lapse of three years from the granting of letters of administration and the publication thereof, all claims against an estate, not presented to the proper court for...