Koering's Estate

Opinion by Rice, P. J., The question involved is thus stated by appellant’s counsel: Whether a debt due the commonwealth from a decedent is an indefinite lien upon real estate owned by him at his death, generally, or against heirs and devisees. It is settled by the decisions cited in their exhaustive brief that the legislature shall not be taken to have postponed a public right to that of [429] an individual, “unless such an intent be manifested by explicit terms (as it has been in the order of paying a decedent’s debts) or at least by a necessary and irresistible implication,” and that this principle is applicable in the construction of statutes of limitation: Commonwealth v. Baldwin, 1 Watts, 54; McKeehan v. Commonwealth, 3 Pa. 151; Commonwealth v. Johnson, 6 Pa. 136. By the twenty-first section of the Act of February 24, 1834, P. L. 70, which prescribes the manner in which the debts of decedents shall be paid, it is provided that debts due to the commonwealth shall be paid last, and the twenty-fourth section provided that “ 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 certain things were done by the creditor within that period. That the legislature had directly in mind, in this enactment relative to the estates of decedents, debts due to the commonwealth, expressly appears and does not depend upon mere inference. The two sections relate to the same general subject, namely, the debts of decedents, and should be construed together. Observing the generality of the words “ all debts,” in the twenty-first section, and of the words “ no debts,” in the twenty-fourth section, noticing that in the former section there is manifested an intention to abandon any supposed right of priority over debts due individuals which debts due the commonwealth might otherwise have had under the rule of the common law, observing further that in the latter section certain kinds of debts are excepted and that debts due the commonwealth are not mentioned in the exception, and bearing in mind that it is a statute of repose as well as of limitation and was intended to prevent devisees, heirs and purchasers from being surprised by claims against the decedent not placed on record in proper time, we conclude that the requirements of the common-law rule of construction were fully met and’that the limitation of the twenty-fourth section applied to debts due the commonwealth as well as to debts due to individuals. In other words, there is “ a necessary and irresistible implication ” of a legislative intent that the limitation should apply to all of the debts that are expressly mentioned in the twenty-first section and are not excepted in the twenty-fourth section. This con [430] elusion is so well supported by the opinion filed by the court below after reargument that it is unnecessary for us to discuss that proposition further. The legislature having abolished the distinction as to debts of decedents between those due to the commonwealth and those due to individuals, so far as lien upon real estate is concerned, the question arises, whether this distinction was revived by the Act of June 8, 1893, P. L. 392. This is a very different question from that which would be presented if the act of 1893 were the first legislation upon the subject of the limitation of the lien of decedents’ debts, or were to be construed entirely independently of the act of 1834, and must be answered in the negative. And if the distinction was not revived by that act, it certainly was not by the amendatory Act of June 14, 1901, P. L. 562. The first section of the act of 1893, is a literal transcript of the twenty-fourth section of the act of 1834, except in these particulars: the word “ two ” is substituted for the word “ five ” in the designation of the period of limitation; the words “to judgment” are added after the words “ duly prosecuted ”; and there is added at the end of the section a clause relative to the duty of the prothonotary, which has no bearing whatever on the question before us. Leaving this last clause out of view (as we are justified in doing) the section, so far as it relates to the subject now under consideration, is a re-enactment in identical terms of the provisions of the twenty-fourth section of the act of 1834, except that the period of limitation is reduced from five to two years. This being so, and there being nothing in the context to show a contrary intent, we are warranted in presuming that it was intended by the legislature that it should take the place of that section in the general system of laws relative to executors aud administrators and the estates of decedents of which it formed a part, and that no debts should be excluded from its operation that were not excluded from the operation of that section. The revival of the original law by the repeal of a repealing law resting, as it does, upon the presumption of legislative intent, does not occur in any case where the contrary intent appears, and we are of opinion that such contrary intent is apparent here. The judgment is affirmed.