Mack v. Woodruff

Citations

• 87 Ill. 570

Syllabus

<p>1. Set-off—against demand due an estate of deceased person. A debtor can not, after the death of his creditor, by the purchase or payment of claims against the estate, acquire a cross-demand that can be set off in full against the debt he owes the estate, to the injury of other creditors of the estate, where the estate proves insolvent.</p> <p>2. Where a partner pays a debt as the surety of his copartner in the lifetime of the latter, or takes a note from him before his death, it seems there is no question but that the surviving partner, on settlement with the administrator of the deceased partner, may set off such demand without regard to the solvency of the estate.</p> <p>3. But where a surviving partner, after the death of his copartner, pays a debt as surety for the latter, on settlement with the estate, which proves insolvent, he can not set off such claim in full, but may to the extent of his pro rata share, taking the same as other creditors who have proved their claims. His being surety gives him no preference over general creditors, and neither does the fact of partnership.</p> <p>4. Partnership—right of partner to pay himself what the firm owes him. If, on the settlement of firm affairs, one partner is found to be indebted to the other, the latter may retain enough of the partnership assets to cancel the indebtedness, if they are in his hands, and the firm debts are all paid; but if he does not have such means in his hands, and can not procure them, his only remedy is to collect, the amount from his partner as a debtor.</p> <p>5. Same—accounting by surviving partner. The remedy given by statute to compel a surviving partner to account in the county court with the administrator of the deceased partner, is to be governed by the same equitable rules and principles as a proceeding in equity, and such surviving partner, on such settlement, may be allowed, as a set-off, Ms just share of any demands held by him against the deceased partner without first having