Oliver's Appeal

Chief Justice Sharswood delivered the opinion of the court, October 23d 1882. Undoubtedly in an action at law or a proceeding in the Orphans’ Court or in a court of equity neither the guardian nor his personal representatives could set up the bar of the statute of limitations to the demand of the ward for the balance due him. That statute does not run in any case of a technical trust cognizable in equity, which that growing out of the relation of guardian and ward unquestionably is. This is all that the cases cited and relied upon in the opinion of the learned judge in the court below decided. But they do not touch the question in this case which is, whether the demand of the ward continues alien upon the land of a deceased guardian more than five years after his death. The words of the 21th section of the Act of February 21th 1831, Pamph. L. 77, are: “No debts of a decedent, except they be secured by mortgage or judgment, shall remain a lien on the real estate of such decedent longer than five years after the decease of such debtor, unless action for the recovery thereof be commenced and duly prosecuted against his heirs, executors and administrators within the period of five years after his decease; or a copy or particular written statement of any bond, covenant, debt or demand, where the same is not payable within the said period of five years, shall be filed within the said period of five years, in the office of the prothonotary of the county where the real estate to be charged is situate, and then to be a lien only for the period of five years after said bond, covenant, debt or demand becomes due.” The great object of this Act was to quiet the title of heirs and devisees and purchasers from them to the lands derived from decedents. It [303] was only necessai’y for a purchaser or mortgagee to resort to a single office, the prothonotary of the county, to ascertain whether any action had been brought or copy or statement of any demand filed within the period of five years from the decedent’s death. If there was no mortgage or judgment at the time of his death, and the office of the prothonotary was clear of any action or statement of demand, he might rest perfectly secure that his title was unincumbered by any debts or demands against the real estate of the decedent, whatever the nature of the demand might be. It was decided in Kerper v. Hoch, 1 Watts 9, under a similar provision in the Act of 1797, that it applied for the protection not only of bona fide purchasers, but heirs and devisees, and those claiming under them. No distinction is made in the character of the debt or demand. By the death of the guardian the guardianship' ended, and the balance in his hands was without any doubt a debt of his estate, which, when ascertained by a decree of the Orphans’ Court, could be collected from his real estate by proceedings within five years, and from his personal estate at any period short of that which would raise the presumption of payment. It was said by this court in Brindley’s Appeal, 19 P. F. Smith 299, on the Act of 1834, that no admission, however solemn, will dispense with an action. “ The leaning of this court, through the whole current of the numerous decisions upon this subject, has evidently been to favor the heir and to require of the creditor the vigilant prosecution of his demand in the mode pointed out.” No exception has been recognized to the operation of the Act of 1834 other than those expressly named in it. The exceptions expressed necessarily exclude all others. It is a mistake to suppose that the cases of Alexander v. McMurry, 8 Watts 504; and Baldy v. Brady, 3 Harris 111, have any bearing upon the subject. A testator may create a trust of all or a part of his real estate, and certainly, as to the lands comprised in such trust, the debes would not lose their right of payment by the running of five years or any other period other than such as would raise the presumption of payment. This was all. that was decided in Alexander v. McMurry. A devise of lands to executors to be sold for the payment of debts and legacies vests the estate in those as a trust fund for that purpose, and if they neglect to execute the trust the creditors may sell the lands upon a judgment and execution, and the purchaser will take a good title, and in such case there is no limit to the lien of the debts short of a presumption of payment from lapse of time. “Underthe trust thus created by the testator,” said Mr. Justice Kennedy in that case, “ in the residuary clause of his will in favor of his creditors, wo are of the opinion that they ought to be considered as having such a lien upon the estate thereby set [304] apart for the payment of his debts as gave them the right at any subsequent period, however late, as long as the trust remained unexecuted in their favor, to proceed against it by execution.” We think, therefore, the decree of the court below directing the administrator to make application for an order to sell the lands was erroneous. Decree reversed, and now it is ordered that the petition and supplemental petition be dismissed with costs, and that the costs of this appeal be paid by the appellees.