115 Pa. 356 | Pa. | 1887
delivered the opinion of the court, February 28th, 1887.
In January, 1874, Thomas Beckley and Jonas Amolé made
In addition to the facts above stated, the learned Auditor found that, on the death of Mary A. Smith, the note passed to and became the property of her mother who, as above stated, afterwards married Jonas Amolé, appellants’ intestate ; that the note was in fact the property of Mrs. Amolé at tin: time of her death in June, 1885, and hence an asset of her estate. He also found that the only payment on the note was one year’s interest, paid by Beckley, the principal, in March, 1875; that nothing was ever paid thereon by the surety,. Jonas Amolé.'
Assuming the Auditor’s findings of fact to be correct, and we think they are, the sole question is whether the note was barred by the Statute of Limitations. He held it was not, because the operation of the Statute was suspended by the marriage of Mrs. Smith to Amolé, one of the makers of the note, about two years after its maturity. In his report he says: “Sarah A. Smith married Jonas Amolé not later than 1878, and at that time the Statute had not barred the collection of the note from Jonas Amolé. If, therefore, this note belonged to Mrs. Amolé after the death of her daughter, and at the time of her own death, the Statute is not a bar to its collection, and it should be paid out of the fund for distribution.”
In view of the facts found by him, we think the Auditor erred in the conclusions drawn therefrom. It will be observed that the note matured in January, 1875, and suit might have been brought thereon by the payee in her lifetime, and after-wards by her mother before her marriage to Jonas Amolé. Having thus commenced to run. against the note, the Statute continued to run, notwithstanding the death of the payee, and •the subsequent marriage of her mother to one of the makers
Decree reversed at the cost of the appellee, and record remitted to the Orphans’ Court with instructions to distribute the fund in accordance with" this opinion.