Oliver’s Appeal 101 Pa. 299

Oliver’s Appeal.

1. Under the Act of February 24th 1834, section 24 (P. L. 77), all debts of a decedent, not of record, and not expressly charged upon his real estate, cease to be a lien upon his real estate at the expiration of years from his death, unless such lien is continued by action or proceeding begun within that period, in conformity with the provisions of said Act of Assembly. No admission by heirs or personal representatives will| dispense with the necessity for suoli statutory action or proceeding.

2. No distinction is made as to the character of the debt or demand, and no exceptions to the above rule are recognized, other than those expressly named in said Act.

3. A debt due by a guardian at the time of his death to his ward is not an exception to the above rule.

4. Such a debt is a trust to which the statute of limitations does not apply, and it can be enforced against the decedent’s personal estate at any period of time short of that which would raise the common law presumption of payment. But it is not such a trust as will remain a lien on decedent’s real estate longer than five years from his death without revival as provided by the above Act.

5. Where the Orphans’ Court, upon petition of a ward, filed more than five years after the death of his guardian, made an order upon the administrator of said guardian directing him to sell the decedent’s real estate for the payment of a debt due by said guardian at the time of his death to his ward: Held, that no proceeding having been taken within five years to continue the lien of said debt against decedent’s real estate,such lien had expired, and the order of the court was erroneous.

October 12th 1882.

Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.

Appeal from tbe Orphans’ Court of Allegheny county: Of October Term 1882, No. 108.

From tbe petitions and answers filed, particularly referred to below, tlie facts of this case appeared to be as follows: — William Oliver was, in bis lifetime, guardian of William Neel and Harvey Neel, and died intestate June 23d 1875, having a large balance in bis hands as such guardian, and seised of certain real estate incumbered by liens. George Oliver was appointed administrator of his estate. On October 21st 1875, John A. Stone was appointed guardian of said minors, and from time to time up to August 10th 1880, George Oliver, administrator of William Oliver, deceased, paid various sums to tbe said Stone, guardian, on account of the said balance due to said minors. On November 4th 1880, George Oliver, administrator, filed an account of William Oliver, guardian, showing a balance due to the said William and Harvey Neel, which was increased by surcharges to tbe sum of $2,913.75, which amount the court ordered to be paid to the said William and Harvey Neel. The said *300George Oliver also, in pursuance of a citation, filed his account as administrator of 'William Oliver on April 6th 1881, whereby it appeared that there were no personal assets in his hands sufficient to pay decedent’s debts.

On April 23d 1881, a petition was filed in the Orphans’ Court of Allegheny county by E. P. Jones, attorney, on behalf of the said William and Harvey Neel (the younger of whom attained his majority March 9th 1880), praying that the said George Oliver, administrator, be required to sell said real estate of which William Oliver died seised, and which was still incumbered by liens, for the payment of said indebtedness.

The answer of George Oliver, administrator, averred, that, more than five years having elapsed between the death of William Oliver and the filing of the said petition, the petitioners were barred by the Act of February 21th 1831 (Purd. Dig. 122, pi. 88).

Thereupon a supplemental petition was filed on behalf of the said William and Harvey Neel, alleging frequent demands upon George Oliver, administrator, within five years from the decedent’s death, for the balance due said minors, on which occasions generally a small portion of said indebtedness would be paid on account; that the said George Oliver, administrator, and Mrs. Oliver, widow of William Oliver deceased, always promised to pay said balance as soon as they could collect it from the assets of the estate, with interest at 8 per cent. ; and alleging further that certain allegations were from time to time made by said administrator and widow, with intent to gain time and for the purpose of delaying such payment until the expiration of five years from the death of said William Oliver, after which period they, for the first time, refused to recognize any liability, and set up the bar of the statute. To this supplemental petition a supplemental answer was filed by the administrator, widow, and all the heirs of William Oliver, deceased, denying the above recited allegations of the' supplemental petition, and re-asserting the bar of the statute.

Some testimony was taken, as to the disputed facts, and after argument, the court filed the following opinion and decree :

“ The question involved in this case is ruled by a principle established in Commonwealth v. Moltz, 10 Pa. St. 527. In that case the administrators of a deceased guardian filed an account of his trust more than five years after his death, showing a balance in his hands, and suit having been brought against his sureties on his bond, the statute of limitations was set up as bar to the plaintiff’s recovery. The court said: ‘ But, to say nothing of the decree, which is in the nature of a judgment, and therefore not within the Act, the case presents a direct and express trust, over which, in the first instance, the Orphans’ Court has *301exclusive jurisdiction. The Act has no terms that can be made to embrace claims of this character. This has been so repeatedly settled that it is only necessary to refer, among the multitude of cases, to Thompson v. McGaw, 2 W. 161; Doebler v. Snavely, 5 W. 225; and Patterson v. Nichol, 6 W. 379. It is obvious, this defence would not be open to the guardian wore he alive, nor is it more available to his personal representatives, for none of the statutes that have relation to remedies for the recovery of decedents’ debts are applicable here. It is obvious, then, that there is no such laches from mere running of time as could operate to bar the claim of the ward against her living guardian. Were he in existence, nothing that has been suggested in the progress of the investigation could shield him from the successful attacks of the plaintiffs: Vincent v. Watson, 40 Pa. St. 306. No case has been cited, and none has been found, after diligent search, in which this principle has been overruled.

“ The delay in instituting proceedings here is satisfactorily explained by the evidence of the conduct of the administrator, who is also one of the heirs. It was at his instance, and in consideration of a special agreement made with him to pay interest on the amount owing, that time was given. And it was clearly to the advantage of the deceased guardian's estate that time was given. The claim was large, and, had it been pushed, would, in all probability, have caused serious embarrassment in the settlement of the estate. There is no doubt about the validity of the claim. It was not disputed in the distribution of the personal estate of decedent, and received a distributive share from it. There is, therefore, neither law nor equity to the support of the objection made to the relief asked.

“And now, to wit, June 28th, A. D., 1882, this matter came on to be heard, upon petition, citation, and answer, and testimony taken, and was argued by counsel; and, upon consideration thereof, it is ordered, adjudged, and decreed, that George Oliver, administrator, be and he is hereby directed to make application to this court for an order to sell real estate of said decedent, for the payment of debts, including that of .petitioners, within twenty days from this date.”

George Oliver, administrator, and the widow and- heirs of William Oliver, deceased, thereupon took this appeal, assigning for error the said decree.

D. T. Watson, for the appellants.

When William Oliver died his estate became debtor to his wards and his wards became creditors of the estate. Under the Act of February 24th 1834, § 24 (P. L. 77), this debt, not having been put in suit, ceased to be a lien on the defendant’s real estate at the expiration of five years from his death, and, the lien having expired, the Orphans’ *302Court has no jurisdiction to order a sale of real estate for the payment of said debt: Pry’s Appeal, 8 Watts, 257; Bindley’s Appeal, 19 P. F. S. 299; Demmy’s Appeal, 7 Wr. 167; Bailey v. Bowman, 6 W. & S. 118; Kessler’s Appeal, 8 Casey 392; Maus v. Hummel, 1 Jones 228.

E. P. Jones, for the appellees.

The guardianship of the decedent was a trust, as to which neither the Act of 1831 nor the general statutes of limitation have any operation: Commonwealth v. Moltz, 10 Barr 527; Alexander v. McMurry, 8 Watts 501; Baldy v. Brady, 3 Harris 111; Steel v. Henry, 9 Watts 529. The trusteeship of a guardian is jealously guarded by the Orphans Court and the Legislature. Moreover, the court below was amply justified in finding that the delay in instituting proceedings was satisfactorily explained and was permitted at the instance of the administrator and heirs for the advantage of the deceased guardian’s estate.