Williams v. . Williams

Supreme Court of North Carolina

Williams v. . Williams

135 S.E. 39, 192 N.C. 405, 1926 N.C. LEXIS 306

CourtSupreme Court of North Carolina

DecidedOctober 27, 1926

StatusPublished

Cited by5 cases

This text of 135 S.E. 39 (Williams v. . Williams) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Williams v. . Williams, 135 S.E. 39, 192 N.C. 405, 1926 N.C. LEXIS 306 (N.C. 1926).

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Opinion

Adams, J.

In the statute of distributions .it is provided that if a married woman die intestate leaving a husband and more than one child, the estate shall be distributed in equal portions and the husband shall receive a child’s part. 3 C. S., 137(8). The parties admit that the only question for decision is whether upon the agreed facts the defendant has the right to pay his note out of his interest in his wife’s deposit — whether he can offset such interest against the demand of the bank.

A counterclaim may arise out of one of the following causes of action: 1. A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action. 2. In an action arising on contract, any other cause of action arising also on contract and existing *407 at tbe commencement of tbe action. C. S., 521(2). In Smith v. French, 141 N. C., 2, tbe Court said tbat “counterclaim” is broader in meaning tban “set-off,” “recoupment,” or “cross-action,” and includes tbem all, but tbat tbe counterclaim, if it arises under tbe second subdivision of tbe statute, must exist at tbe commencement of tbe action. There is nothing in tbe statement of facts showing tbat Mrs. Williams’ administrator has rendered an account of bis trust or distributed tbe assets of bis intestate’s estate. Tbe defendant’s “interest” as distributee is, therefore, not yet available' to him, and as be has no control over it be cannot direct its application. In any event bis “interest” would be subject to tbe limitation in tbe second subdivision of tbe statute; bis alleged counterclaim did not exist at tbe commencement of tbe action. Tbe right of set-off against tbe receiver of a bank is to be governed by conditions existing at tbe time of insolvency, and as against tbe receiver a debtor cannot set off a claim which is assigned to him after tbe bank becomes insolvent and tbe receiver is appointed. Davis v. Mfg. Co., 114 N. C., 321; 7 C. J., 746, sec. 536.

The judgment is

Affirmed.

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Adams, J.

In the statute of distributions .it is provided that if a married woman die intestate leaving a husband and more than one child, the estate shall be distributed in equal portions and the husband shall receive a child’s part. 3 C. S., 137(8). The parties admit that the only question for decision is whether upon the agreed facts the defendant has the right to pay his note out of his interest in his wife’s deposit — whether he can offset such interest against the demand of the bank.

A counterclaim may arise out of one of the following causes of action: 1. A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action. 2. In an action arising on contract, any other cause of action arising also on contract and existing *407 at tbe commencement of tbe action. C. S., 521(2). In Smith v. French, 141 N. C., 2, tbe Court said tbat “counterclaim” is broader in meaning tban “set-off,” “recoupment,” or “cross-action,” and includes tbem all, but tbat tbe counterclaim, if it arises under tbe second subdivision of tbe statute, must exist at tbe commencement of tbe action. There is nothing in tbe statement of facts showing tbat Mrs. Williams’ administrator has rendered an account of bis trust or distributed tbe assets of bis intestate’s estate. Tbe defendant’s “interest” as distributee is, therefore, not yet available' to him, and as be has no control over it be cannot direct its application. In any event bis “interest” would be subject to tbe limitation in tbe second subdivision of tbe statute; bis alleged counterclaim did not exist at tbe commencement of tbe action. Tbe right of set-off against tbe receiver of a bank is to be governed by conditions existing at tbe time of insolvency, and as against tbe receiver a debtor cannot set off a claim which is assigned to him after tbe bank becomes insolvent and tbe receiver is appointed. Davis v. Mfg. Co., 114 N. C., 321; 7 C. J., 746, sec. 536.

The judgment is

Affirmed.

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Bluebook (online)

135 S.E. 39, 192 N.C. 405, 1926 N.C. LEXIS 306, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-williams-nc-1926.

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