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Debts to be set off should be mutual. Now mutual debts, in the purview of a statute of set-off, are not merely those which are owing, but those also which are due and payable, on each of which the cause of action has accrued and exists at the same time. A debt not yet due and payable may not be set off against one presently capable of having an action filed against it.
The mortgagee extended the mortgage in exchange for a bond that required the mortgagee to pay the testator an annuity in the testator's lifetime and, within four months after the testator's death, pay the executrix a proportional sum derived from the amount of time between the last annuity payment and the testator's death.
Should the mortgagee be allowed to a setoff as to the testator's burial expenses?
The court modified and affirmed the judgment. 2 N.Y. Rev. Stat. p. 87, § 27, implied that the executrix was to pay burial expenses. Although the mortgagee was not entitled to a setoff of claims due against the testator during the testator's lifetime, the mortgagee, in light of the agreement with the testator, was entitled to be paid from the estate's assets in the executrix's hands the amount of the testator's burial expenses from the estate's assets in the executrix's hands.