no. 162.
Opinion,
Mr. Justice Clark:
David Light died February 26, 1873, leaving to survive him a widow and seven children. By his last will and testament, he directed that after the death of his widow all Ins real and personal property should be sold, and that the proceeds thereof, with the money on hand, should be equally divided amongst his children. After the widow’s death, this provision of his will was complied with, and the account of the administrator, d. b. n., c. t. a., shows a balance in his hands of $8,485.15, and this is the fund for distribution. By his will, the decedent provided as follows : “ And what I have given to any of my children in my lifetime, and charged the same in my book, shall be deducted from their several and respective shares in the distribution of my estate.”
The testator held three notes against his oldest son, Levi Light: one dated August 8, 1867, payable one day after date, for $83.61; one dated April 15, 1868, payable one day after date, for $200; and one dated April 1, 1870, payable one year after date, for $110. The testator was bail for Levi on two other promissory notes: one to Moses Light, dated December 3,1870, payable three months after date, for $300; the other to Catherine Hunsicker, dated April 12, 1871, payable in one year, for $250. The interest on these two notes was paid by Levi up to the year 1876. In that year, Levi Light became insolvent, and the assignee for creditors, in the course of the settlement of his trust, sold and transferred the interest of Levi in his father’s estate to George Hoffman et al., the appellees. The [219]*219estate of David Ligdit, the testator, having been obliged to pay the notes upon which David Light was bail, the whole five notes were presented in the distribution of the assigned estate in 1881, and were allowed a dividend.
The testator, at the time of his death, held a promissory note dated April 8, 1870, payable in sixty days, for $360, against his son Israel, who also assigned his interest in his father’s estate to George Hoffman et al., the appellees.
At the distribution of the fund of $8,485.15, in the hands' of the administrator of David Light, deceased, all the notes mentioned, not only those of Levi Light, but also the note of Israel Light, were laid before the auditor by the appellants as a set-off against the legacies of Levi and Israel respectively, or as charges, in the nature of advancements, upon their respective shares in the estate. The appellees resisted t&is, upon the ground that there was no evidence whatever that the sum specified in any of the notes was ever intended or treated as an advancement, and that, as a set-off, the notes were all barred by the statute of limitations.
The notes were not barred at the death of David Light, deceased, and it is argued, upon the authority of Thompson’s App., 42 Pa. 345, that: “ When a legatee comes into the Orphans’ Court, which is a court of equity, to demand his legacy, he is obliged to do equity by applying his debt in payment of it; ” that, so long as the debt remains undischarged, the assignees, in right of the legatee, will not be entitled to receive the legacy. Thompson’s App., supra, was, without doubt, rightly decided on other grounds. The testator, in that case, by his last will declared his intention to advance to each of his daughters a sum on her marriage, to be deducted from her share, and did so charge each daughter on his family book with the sums advanced, as also his son with the amount of the note in question, paid for him, charging it just as he had charged his daughters with what they had received, respectively. The note, under the facts of that case, was therefore properly considered an advancement, and no question upon the statute of limitations could arise. The reasoning of Thompson’s Appeal, as respects the statute of limitations, is, at best, obiter dictum, and is based upon McClintock’s App., 29 Pa. 360, which is referred to by the learned judge, delivering the opinion, [220]*220to establish the proposition that the date of the death of the testator fixed the relations of the parties; and also upon the English case of Courtenay v. Williams, 3 Hare 539. But McClintock’s Appeal was expressly overruled in Yorks’ App., 110 Pa. 69, and Courtenay v. Williams, as stated in Reed v. Marshall, 90 Pa. 349, is not in accord with the current of decisions under our statute of limitations. In Milne’s App., 99 Pa. 483, it was held, in direct denial of the doctrine of Courtenay v. Williams, that, in the distribution of a decedent’s estate in the Orphans’ Court, the indebtedness of a distributee to the decedent, against which the statute of limitations had run at the time of the decedent’s death, could not be set off against his share. See also Drysdale’s App., 14 Pa. 531. The effect of McClintock’s Appeal was to extend the rule applicable in cases of pure trusts, and enforceable in equity only, to distributions in the Orphans’ Court. The doctrine of that case, however, had no application in personal actions at law against executors: Mitcheltree v. Veach, 31 Pa. 455; nor to a set-off in an action in the Common Pleas for a legacy: Reed v. Marshall, supra. Since the decision in Yorks’ Appeal, however, these distinctions do not exist; the plea of the statute is as available in a distribution in the Orphans’ Court as in actions at law in the Common Pleas.
“ The relation which subsists between a creditor and the estate of his deceased debtor,” said Mr. Justice Paxson, in Yorks’ App., supra, “ is that of debtor and creditor, with a trust superadded, by means of which, and the machinery of the Orphans’ Court, he can demand his proportion of the trust fund after his claim has been established. When so established, it may be said to be seated on the trust, and there is some room for the application of the principle of MeClintock’s Appeal. But in attempting to establish it, the creditor is pursuing the estate of the decedent as his debtor; no other relation exists but that of debtor and creditor, and the statute of limitations may be set up in any forum which has jurisdiction of the case.....The fact that the creditor could sue at law and that the statute could be pleaded in such proceeding, is an answer to the assertion that there is a trust exclusively cognizable in equity. The right to plead it in one court and not in the other is, as before observed, an anomaly. I know of nothing [221]*221to sustain it, and there is an overwhelming weight of authority against it.” The same reasoning applies in this case. There was no evidence whatever that the notes represented sums received by way of advancement: the parties to these notes occupied the relation of debtor and creditor, and the ordinary and appropriate remedy upon the notes was in the Common Pleas; and, if the appellant’s contention is sustained, we have again the anomaly of the right of a party, upon the same debt to plead the statute of limitations in one court, and not in the other. The general and well-settled rule, as stated by the learned judge below, is that, when the statute begins to run, it will not stop because of the death of either party: Mitcheltree v. Veach, supra; Marsteller v. Marsteller, 93 Pa. 350; Amole’s App., 115 Pa. 356; Updegrove v. Blum, 117 Pa. 259; and, since the decision of Yorks’ App., supra, this is a rule of general application.
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no. 162.
Opinion,
Mr. Justice Clark:
David Light died February 26, 1873, leaving to survive him a widow and seven children. By his last will and testament, he directed that after the death of his widow all Ins real and personal property should be sold, and that the proceeds thereof, with the money on hand, should be equally divided amongst his children. After the widow’s death, this provision of his will was complied with, and the account of the administrator, d. b. n., c. t. a., shows a balance in his hands of $8,485.15, and this is the fund for distribution. By his will, the decedent provided as follows : “ And what I have given to any of my children in my lifetime, and charged the same in my book, shall be deducted from their several and respective shares in the distribution of my estate.”
The testator held three notes against his oldest son, Levi Light: one dated August 8, 1867, payable one day after date, for $83.61; one dated April 15, 1868, payable one day after date, for $200; and one dated April 1, 1870, payable one year after date, for $110. The testator was bail for Levi on two other promissory notes: one to Moses Light, dated December 3,1870, payable three months after date, for $300; the other to Catherine Hunsicker, dated April 12, 1871, payable in one year, for $250. The interest on these two notes was paid by Levi up to the year 1876. In that year, Levi Light became insolvent, and the assignee for creditors, in the course of the settlement of his trust, sold and transferred the interest of Levi in his father’s estate to George Hoffman et al., the appellees. The [219]*219estate of David Ligdit, the testator, having been obliged to pay the notes upon which David Light was bail, the whole five notes were presented in the distribution of the assigned estate in 1881, and were allowed a dividend.
The testator, at the time of his death, held a promissory note dated April 8, 1870, payable in sixty days, for $360, against his son Israel, who also assigned his interest in his father’s estate to George Hoffman et al., the appellees.
At the distribution of the fund of $8,485.15, in the hands' of the administrator of David Light, deceased, all the notes mentioned, not only those of Levi Light, but also the note of Israel Light, were laid before the auditor by the appellants as a set-off against the legacies of Levi and Israel respectively, or as charges, in the nature of advancements, upon their respective shares in the estate. The appellees resisted t&is, upon the ground that there was no evidence whatever that the sum specified in any of the notes was ever intended or treated as an advancement, and that, as a set-off, the notes were all barred by the statute of limitations.
The notes were not barred at the death of David Light, deceased, and it is argued, upon the authority of Thompson’s App., 42 Pa. 345, that: “ When a legatee comes into the Orphans’ Court, which is a court of equity, to demand his legacy, he is obliged to do equity by applying his debt in payment of it; ” that, so long as the debt remains undischarged, the assignees, in right of the legatee, will not be entitled to receive the legacy. Thompson’s App., supra, was, without doubt, rightly decided on other grounds. The testator, in that case, by his last will declared his intention to advance to each of his daughters a sum on her marriage, to be deducted from her share, and did so charge each daughter on his family book with the sums advanced, as also his son with the amount of the note in question, paid for him, charging it just as he had charged his daughters with what they had received, respectively. The note, under the facts of that case, was therefore properly considered an advancement, and no question upon the statute of limitations could arise. The reasoning of Thompson’s Appeal, as respects the statute of limitations, is, at best, obiter dictum, and is based upon McClintock’s App., 29 Pa. 360, which is referred to by the learned judge, delivering the opinion, [220]*220to establish the proposition that the date of the death of the testator fixed the relations of the parties; and also upon the English case of Courtenay v. Williams, 3 Hare 539. But McClintock’s Appeal was expressly overruled in Yorks’ App., 110 Pa. 69, and Courtenay v. Williams, as stated in Reed v. Marshall, 90 Pa. 349, is not in accord with the current of decisions under our statute of limitations. In Milne’s App., 99 Pa. 483, it was held, in direct denial of the doctrine of Courtenay v. Williams, that, in the distribution of a decedent’s estate in the Orphans’ Court, the indebtedness of a distributee to the decedent, against which the statute of limitations had run at the time of the decedent’s death, could not be set off against his share. See also Drysdale’s App., 14 Pa. 531. The effect of McClintock’s Appeal was to extend the rule applicable in cases of pure trusts, and enforceable in equity only, to distributions in the Orphans’ Court. The doctrine of that case, however, had no application in personal actions at law against executors: Mitcheltree v. Veach, 31 Pa. 455; nor to a set-off in an action in the Common Pleas for a legacy: Reed v. Marshall, supra. Since the decision in Yorks’ Appeal, however, these distinctions do not exist; the plea of the statute is as available in a distribution in the Orphans’ Court as in actions at law in the Common Pleas.
“ The relation which subsists between a creditor and the estate of his deceased debtor,” said Mr. Justice Paxson, in Yorks’ App., supra, “ is that of debtor and creditor, with a trust superadded, by means of which, and the machinery of the Orphans’ Court, he can demand his proportion of the trust fund after his claim has been established. When so established, it may be said to be seated on the trust, and there is some room for the application of the principle of MeClintock’s Appeal. But in attempting to establish it, the creditor is pursuing the estate of the decedent as his debtor; no other relation exists but that of debtor and creditor, and the statute of limitations may be set up in any forum which has jurisdiction of the case.....The fact that the creditor could sue at law and that the statute could be pleaded in such proceeding, is an answer to the assertion that there is a trust exclusively cognizable in equity. The right to plead it in one court and not in the other is, as before observed, an anomaly. I know of nothing [221]*221to sustain it, and there is an overwhelming weight of authority against it.” The same reasoning applies in this case. There was no evidence whatever that the notes represented sums received by way of advancement: the parties to these notes occupied the relation of debtor and creditor, and the ordinary and appropriate remedy upon the notes was in the Common Pleas; and, if the appellant’s contention is sustained, we have again the anomaly of the right of a party, upon the same debt to plead the statute of limitations in one court, and not in the other. The general and well-settled rule, as stated by the learned judge below, is that, when the statute begins to run, it will not stop because of the death of either party: Mitcheltree v. Veach, supra; Marsteller v. Marsteller, 93 Pa. 350; Amole’s App., 115 Pa. 356; Updegrove v. Blum, 117 Pa. 259; and, since the decision of Yorks’ App., supra, this is a rule of general application. If the statute can be pleaded with effect when the decedent’s estate is a debtor, we can see no good reason why it may not be pleaded also with like effect when the estate is a creditor: if the running of the statute should be stopped by the death in one case, why not in the other ? There is no necessity arising out of the administration of the law, or the practice in equity, which calls for any such distinction; the legatees were as much entitled to the protection of the statute as any other creditor. Admitting the right of an executor, or of the heirs, in the distribution of a decedent’s estate, to set off the debts of the legatees against their legacies, the debts, to constitute a valid set-off, should be valid, subsisting debts, not barred by the statute. If suits had been brought upon these notes before the bar of the statute, the validity of the debts evidenced thereby might have been established and their obligation continued; and, when so established, the executor’s right to a set-off is inherent to the trust, and cannot be denied.
Nor do we think the allowance of a dividend out of the assigned estate of Levi Light, and payment thereof by the assignee, tolled the statute, either as an implied promise to pay or as an adjudication of the debt. The allowance and payment of the dividend was not the act of Levi Light, or of his agent, duly authorized. The assignee was not under the personal direction or control of the assignor: his duties were defined by law, and he could do nothing to bind the assignor, outside of [222]*222the scope of his duty. No new promise of the assignor could be implied from the act of the assignee, who acted for himself, only, in the discharge of official duty. But the further discussion of this question seems useless, as the dividend was paid in April, 1881, eight years and more before the hearing by the auditor. Upon similar ground, the adjudication by the auditor cannot be accepted as an adjudication of the claim excepting as to the assigned estate. In a distribution in the Orphans’ Court, as in Reber’s App., 125 Pa. 20, the adjudication is against the administrator or executor as the legal representative of the decedent; whilst, in the case of a distribution of an assigned estate, the adjudication is against a particular fund only.
We are of opinion that the learned judge of the court below was right in confirming the amended report.
The decree of the Orphans’ Court is therefore affirmed, and the appeal dismissed at the cost of the appellant.
NO. 168.
Mr. J ustice Clark :
For reasons stated in our opinion, in David Light’s Appeal, No. 162 January Term 1890,
The decree of the Orphans’ Court is affirmed, and the appeal is dismissed at the cost of the appellant.