Appeal of McWilliams , 20 W.N.C. 120 ( 1887 )

Opinion,

Mr. Justice Stebbett :

Appellants’ contention is that the Curry and Simington claims, to which part of the fund was awarded, were not entitled to participate in the distribution: (1) Because they had ceased to be liens on the land of which John McWilliams, the testator, died seized and from which the fund was realized; and (2) Because they were barred by the statute of limitations, more than six years- from the maturity of the claims and death of the testator having elapsed before they were presented.

As to the first it is sufficient to say, as did the court below, that the fifth item of the will, in which testator directed all his estate to be “ praised and sold ” by his executors, etc., operated as a conversion of the land into personalty, and hence the limitation act of 1834 does not apply.

The second position is well taken, unless the provisions of the will and what was done in pursuance thereof exempt the claims in controversy from the rule established in Yorks’ App., 110 Pa. 69. The learned auditor and court below came to the conclusion that they did, and in that we think there was no error.

The testator died seized of valuable real estate, consisting of several farms, but he was largely indebted. To provide for the liquidation of that indebtedness appears to have been the main object of the testamentary provisions referred to. In the third item of his will he devised all his real estate to his wife for seven years, but in the same connection he provided that the rents, issues and profits thereof, except so much as might be necessary for her support, should be collected by his son, one of appellants, whom he appointed executor, and applied exclusively to payment of his debts. This provision evidently contemplated an extension of time covering the period of seven years, at least by some of his creditors. It is true they were not bound to wait and accept payment in that manner; but if they accepted the terms and assented to an extension of credit, which the auditor finds they did, neither heirs nor legatees who were parties to the arrangement can now be permitted to set up that indulgence as a statutory bar to such claims. The auditor finds as a fact that shortly after the death of the testator there was an understanding between the Curry claimants and the executor, to which the other appellant assented, that these creditors should postpone the payment of their notes, except the annual interest thereon, until the other debts of the estate could be paid by the executor under and pursuant to the provisions of'the will; and that this agreement, assented to by appellants and for the benefit of the estate in which they were interested, was carried out in good faith. To this arrangement, the executor, who is one of these appellants, was a party, acting under the provisions of his father’s will. In view of these and other facts found by the auditor, the defence to the claims in question, set up by appellants, is unconscionable and should not be permitted to prevail. They both enjoyed the benefit of the agreement to which one of them was actually a party, and to which the oth^r was virtually a party, by assenting thereto and assisting to carry it out; and hence they are estopped from interposing the bar of the statute to the claims in question.

There is another sufficient answer to the position assumed by appellants. When the real estate was appraised under the provisions of the will, after the expiration of the seven years, It. Curry McWilliams, the executor and one of the appellants, and his brother J. C. McWilliams, each petitioned the Orphans’ Court to award to them, respectively, portions of the real estate at the appraisement. That was accordingly done with notice to all the heirs and legatees and without objection from any of them; and, as part of the decree, and for the very purpose of carrying out the provisions of the will as to payment of testator’s debts, the court ordered sixty per cent, of the valuation money to be paid to the executor for that purpose; .and provided that before receiving the sixty per cent, the executor should give bond with approved security conditioned for the faithful application of the money. In March, 1885, the bond was given and security approved. That decree remains in full force and unappealed from. The money in court is part of the fund thus set apart for the payment of testator’s debts, including tbe claims now in question. As tbe auditor finds and concludes: “ here is a solemn adjudication, seating these very debts upon the fund at the instance of all the parties, in interest, who are now here disputing these claims and interposing the statute of limitations.” This conclusion is warranted by the evidence and is a complete answer to appellants’ contention. It is unnecessary to refer to the authorities cited and relied on by the learned counsel for appellants. They are inapplicable to the controlling facts of this case.

Decree affirmed at costs of appellants and appeal dismissed.