Estate of Hughes

Opinion by

William W. Portee, J.,

The court below awarded to William Searfoss the payment of a portion of his claim against the decedent’s estate. It was founded upon two promissory notes signed by the decedent and Charles Hughes, his brother. The first defense set up is that the notes were given pursuant to a contract for the purchase of timber by Charles Hughes, and that the decedent was but a surety. Evidence was adduced to show that the amounts due under the timber contract had been paid, and that thereby liability on the notes was discharged. The testimony respecting the state of the accounts between the claimant and Charles Hughes, the purchaser of the timber, was conflicting. The auditing judge gave it consideration and reached the conclusion that a balance was due and payable. This finding of fact we are not disposed to disturb.

The second objection to the allowance of the claim is, that the notes being in form joint and the co-maker being alive, the court was without jurisdiction to award payment of any part of said notes. In Bowman’s Administrators v. Kistler, 33 Pa. 106, a promissory note was given by three makers. Two of them, the decedent and one other, in effect were sureties. Proceedings were brought against the decedent’s estate. It was contended that the note being in form joint and the decedent but a surety, his estate, by reason of his death, was relieved from liability. Mr. Justice Woodwaed uses this language: “ As the death of a surety after judgment does not prevent pursuit of his estate in the same manner as if the contract had been several, so a fortiori his death before or pending suit shall not prevent such pursuit.” See also Blair v. Wood, 108 Pa. 278, Dingman v. Amsink, 77 Pa. 114, and Miller v. Reed, 27 Pa. 244. The decedent’s estate therefore is liable upon the obligations held by the claimant to the extent of the award. The decedent’s promise to pay was absolute and unconditional. As between him and his copromisor he may have been but a surety; but it may be assumed that without the pledge of his credit the purpose for which the notes were given would not have been accomplished. Where a person contemporaneously becomes surely for the debt or for the performance of a duty of a third person, he renders himself liable thereupon. The consideration is the favor the surety receives from a compliance with his expressed or implied request that credit should be given to the principal: Conmey v. Macfarlane, 97 Pa. 361. True, the promise must be contemporaneous with the original obligation, and it is contended here that the notes in evidence were given subsequently to the execution of the written contract for the purchase of the timber. The testimony, however, shows that when the bargain was made for the sale of tbe timber, the notes were to have the signature of the decedent, and that when they were first presented his name was not upon them, whereupon the notes were not accepted until subsequently, when they were presented to the holder with the name of the decedent upon them. The giving of the notes and the making of the contract were practically one transaction, and no attempt is made to show that the decedent put his signature to the notes under any misapprehension. While the contract had been signed, that which was to have been a contemporaneous act, namely, the delivery of the notes, was simply postponed until the proper signatures were secured.

We are further of opinion that the character of the controversy did not oust the jurisdiction of the orphans’ court. The written obligations were a prima facie claim upon the decedent’s estate. The defense upon the facts was payment. In attempting the proof of this defense it was developed that the original transaction was between the claimant and the co-maker upon the notes. The effect of the proof was in aid of the decedent’s estate. The signature of the decedent to the notes clearly made the claim cognizable by the orphans’ court. We are unable "to see that the evidence in defense of the claim prevented that court from proceeding to adjudicate the right of the claimant upon the fund within its grasp for distribution.

The decree of the court below is affirmed.