Hoch's Appeal

An executor cannot, on objection being made by a legatee, retain for a debt due to himself -which was barred by the statute in the lifetime of the testator.

Appeal from the decree of the Orphans’ Court of Berks county. This was an appeal from the decree of the Orphans’ Court of said county, in the matter of the auditor’s report on the account of Daniel W. Kistler, one of the executors of the will of George Adam Hower, deceased. The appeal was taken by Jacob Hock, one of the legatees under the will. The will of the testator is dated the 26th day of July, 1849. The testator died in the early part of August, 1849. Daniel W. Kistler was one of the executors of said will, and as such settled his account. In his account he claimed a credit for $507.50, paid by him on the 25th of August, 1849, to Adam German. The debt was contracted as follows: In the spring of 1841, Daniel W. Kistler borrowed $500 from the said Adam German, for which he gave his own bond. This sum of $507.50 was paid by Daniel W. Kistler to the said Adam German, after the death of the testator, in discharge of said bond. On the part of the accountant it was alleged that he borrowed this money from German for Hower, the testator, and that he gave him the money in the spring of 1841, on the same day he got it from German; and that having paid the bond to German since Hower’s death, he had a right to charge Hower’s estate with the amount so paid, and to take credit for it in his account. On the part of the appellant was denied the existence of any liability on the part of Hower for this money, and it was contended that the accountant was not entitled to credit in his account for the same. It was alleged that the money was borrowed by Kistler alone, and for which he gave his own bond. That he had not shown any obligation on the part of Hower to Kistler or German, for this money; nor any acknowledgment of this debt on the part of Hower or promise to pay it. That so far from Hower owing this debt to Kistler, Kistler was indebted to Hower by four different obligations, given by Kistler to Hower at different times shortly before Hower’s death, and which notes remained due and unpaid at the time of his death. It was contended that Hower never was bound for this money, and that if he was, it had been long since paid; that the statute of limitations was a complete bar to any claim against Hower or his estate by Kistler. In the account credit was asked for cash paid Adam Herman, $507.50. The account was referred to an auditor, who allowed the credit. Exception was filed to that part of the report, but it was dismissed, and in this Court the allowance of the credit was excepted to.