Appeal of Reber , 125 Pa. 20 ( 1889 )

Opinion,

Mr. Chief Justice Paxson:

When Abraham K. Reber died, April 26, 1879, he owed his father, Samuel Reber, a certain amount of money, represented by two promissory notes ; one of $617.50, due April 1,1878, the other of $100, due October 20, 1878. His estate was insolvent, and when the account of his administratrix was referred to an auditor, Samuel Reber presented these notes: they were adjudicated by the auditor; the sum of $295.18 was allowed and paid upon the one note and $76.93 upon the other.

Samuel Reber, the holder of these notes, died May 10, 1886. On April 20, 1873, he had delivered to his son Abraham a note or writing under seal, acknowledging his indebtedness to his said son in the sum of $600. Upon the adjudication of the account of the executrix of Samuel Reber, the administratrix of Abraham presented this paper as a claim against the estate of Samuel. This claim the executrix of Samuel resisted, and presented the two notes aforesaid, and insisted upon her right to set off the balance due thereon. This claim the learned judge of the Orphans’ Court disallowed upon the ground that the notes in question were barred by the statute.

It was decided in Keyser’s Appeal, 124 Pa. 80, following Yorks’ Appeal, 110 Pa. 69, that the statute of limitations cannot be tolled by anything short of a suit at law, or what is its equivalent in the Orphans’ Court; that a mere demand upon an executor is not such equivalent and does not toll the statute. But there was something more than a demand upon the executor in the present case. There was the presentation of the notes to an auditor appointed to make distribution of the estate of the maker of the notes ; there was an adjudication and allowance of the claim, and a payment on account in pursuance thereof. The liability of the maker of the notes was thus established by the decree of the Orphans’ Court. The auditor is but the hand of that court, and his decree becomes the decree of that court. This-is something more than the presentation of the claim to an executor or administrator. It is the decree of a court of competent jurisdiction, and is as effectual to toll the statute as would be a judgment at law. I concede the position of the court below that this was not a re-assumption to pay the notes, and that an administrator cannot make such a promise. It is not, however, a question of re-assumption. It is a question of adjudication ; of the establishment of the claim in the Orphans’ Court. When so established the statute has no application.

The decree is reversed at the costs of the appellee, and the record is ordered to be remitted to the Orphans’ Court, with instructions to make distribution in accordance with the principles indicated in this opinion.