
    Lyman White, Administrator de bonis non of Joel W. Wilson, Deceased, v. Lyman W. Moe and Robert McD. Gibson.
    M. being the administrator of an estate, allowed the widow to take, at the appraisement, a portion of the goods which were assets of the estate, for which she gave her note, payable in twéke months, with a single insufficient surety. This note, shortly afterward, came into the hands of an administrator de bonis non of the same estate, who, knowing it to be uncollectable, nevertheless voluntarily paid to the widow a balance remaining unpaid upon her allowance for a year’s support, under the statute. This payment was made partly before, and partly after, the maturity of her note. Meld,— That to the extent of these voluntary payments, M. and his sureties were not liable for the loss arising from the uncollectable character of the note.
    Error to tbe district court of Seneca county.
    The original action, in the court of common pleas of Seneca county, was brought by White, administrator de honis non of Wilson, against Moe, a former administrator of Wilson, upon Moe’s administration bond. The action was against Moe, and Gibson, one of his sureties. The other surety was not a party.
    The cause was tried to the court, and the material facts found by the court are these:
    • On the 22d of September, 1856, Moe was appointed and qualified as administrator of Wilson:
    The appraisers made an allowance of one thousand dollars to the widow, payable in money, for her year’s support.
    
      Upon this allowance, Moe as administrator paid the widow $278.30.
    Afterward, on or about March 4, 1857, the widow took, at the appraisement, personal property of the estate amount ing to $1000, and Moe, as administrator, took for the sama her promissory note, with only one surety, payable in twelve months.
    On the 7th of March, 1857, Moe resigned the administration, and filed his account of the same, and William M. Johnson was appointed administrator de bonis non of the estate.
    In April, 1857, Moe’s account was settled in the probate court, and Moe handed over to Johnson, as administrator de bonis non, among other assets and property of the estate, the note for $1000, above mentioned, made by the widow and her one surety; and Johnson received it as a part'of- the assets.
    Afterward, and while the $1000 note was in his hands, and before it became due, Johnson, as administrator de bonis non, paid to the widow, on her allowance, $603, and after the note became due, the further sum of $118.70, in full of the allowance.
    The $1000 note could not have been collected by suit at any time after its date; and Johnson, administrator de bonis non, ^pgarded it as uncollectable from the time it came to his hands, and took no steps whatever to collect the note or enforce its payment.
    In the common pleas, the plaintiff, White, as administrator, claimed that Moe and his surety should account for the whole of the $1000, except the sum of $118.70, which it was in Johnson’s power to have set off against the allowance.
    The common pleas held that Moe should account only for the $278.30 paid by him to the widow on her allowance, before he 'turned the administration and assets over to Johnson; and gave judgment accordingly.
    To reverse this judgment, White, as administrator, filed his petition in eri’or in the district court, but the judgment of the common pleas was affirmed. To reverse the judgment of affirmance the present petition in error was filed.
    
      Zee <& Brewer and W. P. Noble for plaintiff in error.
    
      J. O. Zee
    
    argued the following propositions:
    1. By allowing the widow to take the $1000 of property, at the appraisement, without taking from her the same kind of note, as to time and security, that he might take for property sold to others, Moe’s bond became liable for any loss on such note. S. & C. 569, sec. 13, pt. 2d; 578-9, sec. 70, pt. 1st; secs. 73, 74, 75.
    2. The claim for the defence, that Johnson, as administrator, ought to and could have refused to pay the widow’s allowance, and. thus secure $603, and interest, to the estate, by applying that amount on the $1000 note, is, in its nature, an affirmative defence, and to be available must be affirmatively set up, and cannot be urged under the general denial in the answer to the petition. In its nature it cannot be a defence at law, if true; and can only be asserted in equity.
    3. The widow’s allowance was due and payable all within ' at least one year from the death of Wilson, and Johnson had no right to keep it back beyond the expiration of the year to set off the $1000 note against it. S. & O. 574, secs. 44, 45 ; 580-1, sec. 82; 584, sec. 96; 14 Ohio St. 513-14.
    4. The note not being due, Johnson dould not set it off against the claim of the widow for her allowance.
    5. White, the administrator, is entitled to judgment for $603, and interest thereon since May 4,1858, in addition to the amount for which judgment was rendered by the common pleas.
    
      James Pillars for defendants in error:
    1. The plaintiff should not recover for the amount of the $1000 note taken from the widow, on the ground that it was taken at twelve months instead of at nine months.
    It does not appear that the estate ever suffered any damage whatever from the time upon which the note was taken. It fell due many years before the estate was settled. No injury therefore occurred to the estate from the length of time upon which the note was taken, and the plaintiff is not entitled to recover on that score.
    But it is said that the note was taken from the widow with out sufficient security, and that the estate has suffered damage and for that the plaintiff should recover against Moe on his official bond. When Moe took the note from the widow, he held in his hands as administrator, the balance of her allowance, and which Johnson paid, amounting to $721.70. This was security in his hands, to that amount, upon the note, and Moe so held it and regarded it, for he never paid any moi’e to the widow upon her allowance after he took the note. Moe had a right to hold on to that balance of the allowance to the widow as a security to her note.
    It is contended that when the widow gave her nóte, it was not due and payable for one year yet, while her allowance was then due and payable. The widow could not have maintained a suit against the administrator for her allowance until such time as her note would be mature; and if she could have done so before the maturity of her note, yet he could have set up the note and defeated her recovery.
    After Johnson got the note, he should not have paid the allowance to the widow as he did, but should have held it and applied it on her note, and especially so as he always regarded the note worthless.
    
      J. J. Moore, also, for defendants in error:
    The plaintiff virtually concedes Johnson’s liability for the $118 70. So the only question for the court to determine is Moe’s liability for the balance, being $603 paid by Johnson while administrator de bonis non, after the note went into his possession as assets of the estate.
    The year’s allowance was not due prior to the time of payment of the note. There is nothing obligatory upon the administrator to pay the widow her allowance within the year. S. & G. 574, secs. 44, 45.
    . If Moe is liable at all, it will be for the neglect of Johnson who could have retained the amount from the widow and applied it on her note.
    Johnson could have ref used to take the note from Moe, but having taken it as assets of the estate, Moe was deprived of the right to collect the note, and Johnson having failed to retain the amount unpaid on the allowance, he is liable to the estate.
    When an allowance is made to the widow for her year’s support, it becomes a debt against the estate (Bane v. Wick, 14 Ohio St. 506). So that Moe held the balance of the allowance as security on the note of the widow, and surrendered it to Johnson. That Johnson failed to make it available, is not Mo.e’s fault.
   Scott, J.

At the time of Moe’s resignation, and Johnson’s appointment as administrator de bonis non, Mrs. Wilson, the widow, had a valid claim against the estate of her deceased husband for the residue of the sum allowed her by the appraisers for a year’s support, after deducting what Moe had already paid thereon. This residue amounted to $721.70.

At the same time she was indebted to the estate in the sum of $1000, the appraised value of a drug store, which she had elected to take at the appraisement, as she might do under the statute.

Eor this sum she had given her note, payable twelve months after date, with one irresponsible surety. The statute allowed a credit of nine months only to be given in such case, and required a note to be executed for the amount with two approved sureties. There is no doubt that the defendant Moe, in thus disposing of the assets of the estate without proper security for payment, was guilty of a breach of official duty, and that for any damage or loss thereby occasioned to tbe estate, under a proper administration of its assets by the administrator de-bonis non, Moe and his sureties must be held liable.

But this note was handed over by Moe to Johnson, who succeeded him in the administration, as part of the assets of the estate; Johnson received it as such; and though he regarded. both the makers as wholly irresponsible, yet he subsequently paid to the widow upon her year’s allowance, before her note matured, $603, and the farther sum of $118.-70, in full of the allowance, after the maturity of the note. And so no part of the $1000 note has ever been accounted for to the estate; the makers are insolvent, and the question is, which administrator must answer for the loss? To whose mal-administration is it justly chargeable ?

It is conceded by the plaintiff, that as to the last payment made by Johnson to the widow after her note matured, Johnson and his sureties are to be held liable, and not the present defendants. Is the case substantially different as to the $603 previously paid by Johnson ? As matters stood when the administration came into Johnson’s hands, we think it clear that the widow could not have legally compelled him to make further payment of her allowance. As against the estate, or as against him as its representative, she had no light to a credit of more than nine months on the price of the assets taken by her at the appraisement. She had no right to a/nry credit, without giving such security as the law required. She had already received in money, and other assets of the estate, more than the whole amount allowed her by the appraisers; and so long as she might fail to secure, pursuant to law, her accountability for the assets thus received, we think Johnson would have a full equitable defence to any claim of her’s for further payment. But, knowing the note which she had given to be absolutely worthless, he voluntarily paid over to her, whilst she was really the debtor, and not the creditor of the estate, more than $700 in money, for the repayment of which he knew that he had no adequate security. Of whatever breaches of duty Moe had been previously guilty, yet when his functions as administrator ceased, and Johnson became the administrator, it was then his duty not to follow in the footsteps1 of his predecessor’, but faithfully to administer the assets remaining unadministered, and to collect all debts remaining due to the estate, so far as the exercise of ordinary prudence and reasonable diligence might enable him to do so.

To the extent, of the $721.30, remaining unpaid on Mrs. "Wilson’s allowance, he had in his hands the means of compelling an account for the goods -which she had received. And we think that ordinary prudence and fidelity to his trust should have led him to withhold all further payments to her. His duty to the estate, as well as to Moe and his sureties, required so much at his hands. To the extent of these voluntary and wrongful payments, the damage sustained by the state is no the direct and necessary consequence of any breach of duty on the part of the defendant Moe, but is the direct result of subsequent ma-admlnistration.

The sum allowed for the support of the widow, and the value of the goods taken at the appraisement were each $1000. Before she thus took the goods at the appraisement, Moe, as administrator, had made a payment to her on the allowance, and to that extent her note was wholly unsecured when it came into Johnson’s hands. For this portion of the loss Moe and his sureties are clearly liable. But, for the reasons stated, we are of the opinion, upon the state of facts shown by the record, that this is the extent of their liability. Such seems to have been the view taken of the case by the court of common pleas, and we think the district court did not err in affirming the judgment rendered therein.

Judgment of district court affirmed.

Brinkeehokk, C.J., and White, Welch, and Day, JJ., concurred.  