Every person having a claim against a deceased person, proper to be allowed by the commissioners, who shall not, after the publication of notice as required in the second section of this chapter, exhibit his claim to the commissioners within the time limited by the court for that purpose, shall be forever barred from recovering such demand, or from setting off the same in any action whatever." A preceding section (5894) provided: "On the application of a creditor who has failed to present his claim, if made at any time before the estate is closed, the judge of probate may revive the commission, and allow further time, not exceeding three months, for the commissioners to examine such claim," etc. By section 5904, which is part of the same chapter, and stands as section 17 of that chapter, it is also provided: 66 Nothing in this chapter shall be construed to prevent an executor or administrator, when he shall think it necessary, from commencing and prosecuting any action against any other person, or from prosecuting any action commenced by the deceased in his life-time, for the recovery of any debt or claim, to final judgment, or from having execution on any judgment." By section 5905 it is further provided: "In such case the defendant may set off any claim he may have against the deceased, instead of presenting it to the commissioners, and all mutual claims may be set off in such action; and if final judgment shall be rendered in favor of the defendant, the same shall be certified by the court rendering it to the probate court, and the judgment shall be considered the true balance." It would seem, at first blush, that sections 5901 and 5905 are contradictory, and cannot be harmonized so that both can stand; but, after examination, it is evident that the intent of the Legislature was to allow the defendant, in an action prosecuted against him by the executor or administrator in certain cases, to set off a claim against the deceased in that action without first having the amount of his set off fixed and determined by the commissioners on claims, or by the probate court. In an action commenced by the deceased in his life-time, the executor or administrator may, under section 5904, prosecute the case to final judgment. In such case the defendant, by section 5905, is permitted to set off his claim in the action without first presenting it to the commissioners on claims. But the present case does not disclose such a state of facts. Here it is not claimed that the action was commenced in the life-time of the deceased. The defendant had time to present his claim to the commissioners, and failed to do so. He waited until the action was commenced on the note, without attempting in any manner to have the amount fixed by the tribunal which the statute had created for that very purpose. It is essential to the interests of creditors and distributees that such estates be closed as quickly and cheaply as possible, and the assets collected. If one having a claim against an estate may remain silent, and refuse to present it to commissioners appointed for the very purpose of hearing and passing upon it, because the decedent held a note against him, and which the administrator may present for payment, it would be difficult to close the estate, in many instances. The commissioners are not appointed to ascertain and determine who are indebted to the estate, or to hear claims which the administrator may have against third parties, but to hear and pass upon claims against the estate, as presented to them. If the defendant had made known his claim to the commissioners, it is true, the administratrix might have presented the note as an offset against it; but the administratrix could not, in the first instance, present the note before the commissioners as a claim against the defendant. The estate is not yet closed, within the meaning of the statute, as there has been no distribution. Green v. Probate Judge, 40 Mich. 244; Brown v. Forsche, 43 Id. 492. The defend ant, under such circumstances, undoubtedly would have the right to petition the probate court for an order, under section 5894, reviving the commission, and allowing time to present his claim to the commissioners, and in such case would be entitled to pro rate with other creditors. We think the court below correctly ruled. Judgment is affirmed. Ths other Justices concurred. OCTOBER TERM, 1893. 97 121 105 486 97 121 137 275 668 MELVILLE J. BIGELOW, ADMINISTRATOR OF THE ESTATE Municipal corporations-Defective cross-walks-Liability for injury. 1. Cities are not required to keep streets in a condition absolutely safe for travel. 2. The construction of a cross-walk in accordance with the requirements of the locality, adopting the usual means, and those best adapted for the convenience of the public, cannot be said to be a negligent construction. 3. A cross-walk must be reasonably safe in view of the purpose for which it is constructed, the necessary uses of the street, and all the varying conditions. Error to Kalamazoo. (Buck, J.) Argued April 19, 1893. Decided October 13, 1893. Negligence case. Plaintiff brings error. Affirmed. The facts are stated in the opinion. Osborn & Mills, for appellant, contended: 1. A municipality cannot build a dangerous and unsafe cross-walk, 137 |