117 Pa. 111 | Pa. | 1887
Opinion,
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
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
Decree affirmed at costs of appellants and appeal dismissed.