L'Engle v. L'Engle and Hartridge-Argument of Counsel. character and have his judgment satisfied of the goods and chattels of the decedent. If F. F. L'Engle cannot sue the administrators of Sanderson as such, he cannot set his claims as their attorney against a demand due them in their representative character. 3 Williams on Executors, Sec. 1874, and Notes 1872 and 1876; 2 Porter, Ala., 33; 7 Fla., 221 and 317; 6 Am. R., 92; N. Y., 316. Set-offs must be mutual demands; they must be due to and from the parties to the suit in the same right. A debt due by an administrator personally, cannot be set off against a debt due the intestate or the administrator as such. The claims due F. F. L'Engle are due to him from E. M. L'Engle and T. Hartridge personally; the debt on which the suit is based is due to them as administrators of John P. Sanderson. These claims of F. F. L'Engle cannot be set off in this suit. Waterman on Set-off, 3, 187, 208; Harbin vs. Levi, 6 Ala. 399. There is another reason why these offsets should not be permitted to be filed in a suit by the administrators of this suit, because they are liable to alter the regular and legal order of the distribution of assets. There may be preferred claims due from the estate and F. F. L'Engle would be permitted to pay his own claim whether in order or not, even if this was a debt due him from the intestate. 2 Hills, N. Y., 213; 20 Johnson, N. Y., 140; 6 Barbours, N. Y., 331; 21 Wendall, N. Y., 674 and 5. We drew the demurrer and assigned same cause of demurrer to each item of offset separately, as they are each like the separate counts in a declaration, and the demurrer might apply to some and not to other items. The item of interest is undoubtedly no charge on the estate and other particular items which can be noted. 2 Hill's Rep., 213: 3 Williams' Exs., 1874. 3: 3 Simmons' Rep., 241. The judgment taken was on a default for want of a plea L'Engle v. L'Engle and Hartridge-Opinion of Court. or demurrer on the rule-day after the overruling of the demurrer in vacation, a rule-day passed, and a plea should have been filed; the rules do not contemplate that a declaration shall remain in the clerk's office unanswered, but if plea is not put in, a default and final judgment thereon follows; and this is the only judgment that the clerk is authorized in vacation to enter. Chap. 1938, Secs. 6 and 7; Rules 16 and 6 Com. Law Actions. The Judge may order parties to plead; if he does not the next rule-day would seem under the rules to be the day when they should plead, and if not, suffer default. Rule 6 Com. Law Actions. MR. JUSTICE WESTCOTT delivered the opinion of the court: The action here is by Sanderson's administrators in their representative character against the appellant upon a promissory note given by him to them in their representative capacity for money assets of the estate borrowed by him of them. The appellant admits these facts in his plea, and by way of setoff sets up an indebtedness of the administrators to him for work and labor performed by him as an attorney and surveyor in connection with Sanderson's estate at the request and instance of the administrators. To this: plea a demurrer was sustained and from this judgment this appeal is taken. The principal question, therefore, for us to determine is whether services performed for an administrator for the estate which he represents can be set off in a suit by the administrator in his representative capacity for moneys of the estate lent by him as administrator to the defendant. The law is that an administrator may sue in his representative capacity upon such a contract, and he will be chargeable with the proceeds as assets. Branch vs. Branch, L'Engle v. L'Engle and Hartridge-Opinion of Court. 6 Fla., 323; 1 Chitty's Pleading, 16 Am. Ed., 226; Sheets vs. Pabody, 6 Blackf., 122; Hemphill vs. Hamilton, 6 English, (Ark.) 426; Abingdon vs. Tyler, 6 Cold., 502; 2 Williams on Executors, 6 Am. Ed., top page, 949, 952. While at the same time his creditor cannot recover a judgment de bonis intestatoris in a suit against the administrator. The judgment in the suit of his creditor is de bonis propriis. Branch vs. Branch, 6 Fla., 325. The general ruie is that an administrator can make no new contract in his representative character to charge the estate of the testator, and for any breach of a new contract entered into by him as administrator subsequent to the death of the intestate be is only liable in his individual capacity. May vs. May, 7 Fla., 220; McHardy vs. McHardy, 7 Fla., 317; Branch vs. Branch, 6 Fla., 325: Davis vs. French, 20 Me., 23. There cannot in such case be a judgment to be satisfied out of the assets of the intestate. To allow this plea here to prevail would be equivalent to a judgment pro tanto of payment from the assets of the intestate which cannot be. Such a set-off cannot be sustained as the claim is not in the same right. Harbin vs. Levi, 6 Ala., 399; McEldery et al. vs. McKenzie, 2 Porter, 36; Turner vs. Plowden, 2 Gill. & John., 457; Waterman on Set-off, 187. It must be apparent also that a power in the administrator to bind the assets of the intestate by his personal contracts in reference to the estate would materially interfere with the due course of administration of the estate. If the administrators had paid this claim the matter would then have been the subject of consideration and action by that forum to which such jurisdiction appertains. The only other objection made to the judgment in this case is that the final judgment entered after default in pleading for want of a plea or demurrer is erroneous. This we think was clearly error. There was here no default in L'Engle v. L'Engle and Hartridge-Opinion of Court. pleading. Where the judgment should be final upon the demurrer both the statute and the rules contemplate that such judgment shall be rendered, and if it is an action in which the clerk can assess the damages, and this is such an action being assumpsit upon a promissory note, such final judgment should be entered. In this case it is apparent that the defendant rested upon his demurrer and proposed neither to amend his plea nor to file any other plea. Section 9, Chapter 1938, Laws, provides that a demurrer may be heard in vacation, “and the Judge may in vacation make any order in regard thereto and consequent upon his determination of the issues of law presented that he could in term time," and Rule 29 of the Circuit Court in common law actions contemplates a final judgment by prescribing regulations for amendment of the pleading. Neither the statute nor the rule contemplate an imparlance except in cases where the disposition of the demurrer is "otherwise than by final judgment." Such judgment is the judgment of the court to be entered by the clerk upon the order of the Judge in the same manner as such judgment would be entered in term time, the clerk assessing the damages. There is in this record no such order of the Judge, and the judgment is entered by the clerk in vacation here without the order of the Judge in a case where such order is required by law. The judgment is reversed and the case will be remanded. with directions to enter a judgment in conformity with the views expressed in the opinion herein rendered. Kingsley v. Broward et als.-Statement of Case. JAMES KINGSLEY, WILLIAM AND OSCEOLA KINGSLEY, PLAINTIFFS IN ERROR, VS. ADEL E. BROWARD, FRANK BROWARD ET. ALS., DEFENDANTS IN ERROR. I. Where an estate is conveyed to A for life with remainder to B, B's remainder in fee passes from the grantor to B at the same time as the life estate of A in possession. No subsequent deed from the grantor can divest B of his estate in remainder, nor in any manner limit or qualify it. 2 A limitation of an estate to illegitimate children of the grantee thereafter to be begotten is void as against good morals and public policy. 3. Where a deed conveys real property in trust to Flora for life, remainder to Charles, her illegitimate son, his heirs and assigns, and provides that in case Charles dies without issue, then to any other "quarteroon children" Flora may have (not yet begotten), and their heirs and assigns; "but in case Flora should die without leaving issue of such description, then the trustees to hold the property to and for the use of her heirs and assigns forever;" it is held, that in law the "issue" of Flora means legitimate children, and that after-born illegitimate children do not take under such deed; and Charles dying without issue and afterwards Flora dying without legitimate issue, she having assigned and conveyed the property after the death of Charles, her grantee holds as against her heirs. Writ of Error to the Circuit Court for Duval County. This is a writ of error to the Circuit Court for Duval county, upon the judgment of Hon. James M. Baker, ref eree. Plaintiffs in error commenced suit in ejectment against John Broward and Adel E. Broward, his wife, to recover three hundred acres of land in Duval county. John Broward dying pendente lite, his heirs above named were made parties. Defendants pleaded not guilty. The cause having been referred, the referee upon the pleadings and proofs found |