Estate of Ritchey , 1898 Pa. Super. LEXIS 95 ( 1898 )

Opinion by

Porter, J.,

John Ritchey, the decedent, had been from 1876 until 1890, the agent of the executors of the will of James O. Carson, for the general management of that estate.

Ritchey kept an account of the moneys passing through his hands. He died September' 24, 1895. The executor of his will filed a first account in the office of the register, April 9, 1896. On May 2, 1896, this account was confirmed by the orphans’ court, and an auditor appointed to make distribution.

Before the auditor the executors of Carson’s will appeared and alleged that Ritchey had made an overcharge for compensation in his dealings with them. The auditor found a balance against Ritchey of $570.57 in favor of the claimants. The auditor, however, disallowed the claim because barred by the statute of limitations. On exceptions, the orphans’ court reversed the auditor holding, in affirmance of an exception, that, as the account of W. U. Brewer, executor of John Ritchey, was filed in the register’s office on the 9th of April, 1896, and presented to and confirmed by the orphans’ court on the 2d of May, 1896, and as the last receipt of moneys by the said John Ritchey, agent, was of the date of the 19th of April, 1890, and his last disbursement of the date of June 10, 1890, the statute of limitations is not a bar to the claim of the executors of James O. Carson; that the statute ran only from the termination of the relation of principal and agent; that the last transaction was on the 10th of June, 1890; and that six years had not run from that date at the time of the filing of the account of Ritchey’s executor, nor at the presentation and confirmation by the court, and therefore the statute was not a bar.

These rulings are the basis of the complaint of the appellant, and raise but the single question: Was the claim barred by the statute ?

The first portion of the appellant’s argument is directed to a finding of fact. The court below holds, reversing the auditor, that “after 1881, there is certainty no evidence in the case to justify a conclusion that the executors knew of the annual receipts and disbursements of their agent, that is, not as definitely and exactly as this finding would assume. They received money from him at different times, and it would be reasonable to suppose that, iu a general way, they had some knowledge of his agency. But the account itself clearly shows there was no annual settlement, that the agency went along continuously from year' to year without any settlement at any time, and after the year 1881, the evidence shows no other statement or presentation of his account to these executors, or either of them until August, 1892.” We rarely reverse the lower court on findings of fact. In this case the whole of the evidence has 'been examined by us, and we find no error to warrant a reversal.

It is, however, urged that “all of the items of Ritchey’s agency account, except the last, are barred, because more than six years before the filing of the account.” The claim of Carson’s estate is not based wholly upon an account. The account in evidence was kept by Ritchey himself and showed a balance in his own favor. It was introduced as an admission, by its entries, of the continued relation of principal and agent up to a certain date. The claim is for an overcharge for services and commissions. ' The account covering a long period and containing many items, was a running account of an agent with a principal. The business involved many acts and duties. The dealings covered by the account were continuous. Under these circumstances no action could be brought against the agent until the termination of the relation of principal and agent. The statute runs only in such case from the time of the severance of the relation: Campbell v. Boggs, 48 Pa. 524; Norris’s Appeal, 71 Pa. 123; McCain v. Peart, 145 Pa. 516; Johnston v. McCain, 145 Pa. 531.

By the account the relation still existed on June 10,1890. The last item, showing a payment, bears that date. The executor’s account, now under review, was filed April 9, 1896, confirmed May 2, 1896, and the claim presented before the auditor June 18, 1896. While the six years had not run when the account was filed, they had run before the claim was presented before the auditor. Was the pendency of the settlement of the account sufficient to toll the statute ?

There can he no doubt that if the claimants had issued a writ at common law within the six years, or had presented their petition to the orphans’ court for a citation to the executor of Ritchey’s will to file an account, the statute would have been tolled. But why send a litigant into the common-law court, whence he must immediately return to the orphans’ court in order to participate in the distribution of an estate already in court by the filing of an account? He is compelled, in order to obtain any part of the fund in the hands of the executor, to proceed in the orphans’ court, which alone has power to distribute the estate: Phillips, Adm’r, v. Railroad Co., 107 Pa. 465; Hammett’s Appeal, 83 Pa. 392.

Again, why require the presentation of a petition for citation? The object of such a petition is to procure or compel the filing of an account. If then, the sole purpose of the procedure is accomplished hy the voluntary act of the executor in filing an account within six years from the creation of the creditor’s claim, what good purpose is subserved by requiring the presentation of a petition? It leads to absurdity. An account is filed. The danger of the expiration of six years befóte audit, menaces the creditor. To keep his claim alive, he must file a petition for citation to file an account, which account has in. fact been already filed.

The conclusion from which there can be no escape, is that the filing of the account by an executor in the orphans’ court, whether under the compulsion of a citation sur petition, or by voluntary act, tolls the running of the statute as to the fund brought into court hy the account in respect to claims presented before final adjudication. This decision is intended to reach no further and runs counter to none of the tenets of York’s Appeal, 110 Pa. 69, and kindred cases.

The decree of the court below is therefore affirmed.

Smith and Orlady, JJ., dissent.