Chapter 34 - § 34.7 • DEVISEES INDEBTED

• Jurisdiction: Colorado

§ 34.7 • DEVISEES INDEBTED

Were there any notes or book accounts of any of the devisees that were not forgiven by the will? Can part of the devise be retained against the debt even though the statute of limitations has run against it, or the debtor has been discharged in bankruptcy, since the Colorado common law doctrine was that the statute bars the remedy and not the right?⁸

The Code makes it clear that there should be an offset against the heir or devisee but does not state definitively whether the debt still exists despite its being barred by the statute of limitations or bankruptcy. See § 30.9. A devisee is clearly entitled to any defense, such as statute of limitations, that would be available to him or her in a direct suit, but the question is not entirely clear as to an heir.⁹

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Notes:

^[8] Page on Wills §§ 57.6 and 57.7 (Bowe & Parker Rev.); C.R.S. §§ 15-11-111 and 15-12-903; Rogers v. Rogers, 44 P.2d 909 (Colo. 1935); see Estate of Grigsby, 56 P.2d 1318 (Colo. 1936); see Hirning v. Webb, 419 P.2d 671 (Idaho 1966); Fleming v. Yeazel, 40 N.E.2d 507 (Ill. 1942), involving a statute similar to C.R.S. § 13-80-110; Annot. 39 A.L.R.2d 675; see Haffke v. Linker, 489 P.2d 1047 (Colo. App. 1971), cert....