W. D. Guthrie v. Orin Guthrie's Adm'rs., 17 Tex. 541

Hemphill, Ch. J. The matters set up in the answer were not a sufficient defence to the action. The general rule in relation to debtors of an estate is, that to an action brought by an admininistrator, the defendant cannot plead in offsej any demand against the estate accruing since the death of the deceased. To adjust such discounts would encroach on the province of the County Court, and lead to embarrassing investigations as to the assets and proper distribution of an estate. There are exceptions to the rule, as for instance in the case of Hall v. Hall, 11 Tex.

R. 553, where one being the sole creditor of an estate, and being also indebted in a small amount, the Court would not allow judgment to be had and enforced against him, at perhaps a great sacrifice of his property, when the money so raised would be paid back to him as soon as paid to the administrator. The general rule is applicable as well to heirs who are indebted to the estate as to ordinary debtors. They cannot set up, in a suit by the administrator, as an offset, the distributive share to which, on final settlement, they may be entitled.

This, if allowed, would embarrass the" District Court with questions pertaining properly to the County Court. To the rule there are exceptions, as for instance where the estate is not indebted, or to but an inconsiderable amount, and the defendant is sole distributee. " The Court would not permit judgment to be obtained and enforced against him by an administrator, who in fact is acting but as the trustee of the defendant. The answer, in this case, is not sufficiently specific. It avers the heirship of defendant, but not how many other distributees there may be, or who they are.

The amount of the estate and his share, the amount of the debts, in such plea, ought to be stated with some degree of precision. Further, an heir, on the expiration of twelve months from the original grant of administration, may apply to the County Court for partition. The date of the note shows that more than twelve months had elapsed from administration, and the plea should have shown an application for division.

Had that been shown, and had it been sufficiently apparent that the defendant would be entitled to a share, on settlement, it would have been the duty of the Court to have admitted the plea of discount, or to have stayed proceedings until the final action of the County Court. But the defence, as pleaded, being insufficient, there was no .error in the judgment, and it is ordered that the same be affirmed. Judgment affirmed.