Johnston's Estate No. 1. and care, as is also testified to by his son, and was enabled to see from these entries the exact status and growth of his business at the respective semi-annual periods. The testator, although first entitled, never took out letters of administration on his wife's estate. He had large real estate holdings in his first wife's name; these his children transferred to him immediately after her death. From these holdings he made some advancement to them. The origin of this alleged indebtedness is ancient. Fifty years have elapsed since the testator charged himself with his wife's property, and the questions of stale claims, presumption of payment, the statute of limitations, and laches, are strongly presented against the allowance thereof. But the uncontradicted evidence in this case is clear and precise, coming from the testator himself, that he received and made himself responsible for his wife's estate to the extent of the items which he charged against himself and credited her account with as separate property belonging to her. True, there is little other evidence than his own written declarations with respect thereto, but they are uncontradicted and stand as verities. Since, therefore, the fact has been found that he received these moneys from or through his wife as her separate estate, the law as applicable thereto is well settled in Wormley's Estate, 137 Pa., 101, where the husband in 1859 received from his wife money which she inherited from her father and had it in his possession when he died 27 years later in 1886, the court saying: "The rule of law applicable in such case is that the mere fact of the reception of the wife's money by her husband makes him her debtor and it requires no affirmative proof by the wife that he received it as a loan and not as a gift," citing Grabill vs. Moyer, 45 Pa., 530; Bergy's Appeal, 60 Pa., 408, and Hammell's Appeal, 88 Pa., 363. He is her trustee. If it be said that the proofs of testator's possession of his wife's estate depend only on book entries, the answer is that such entries are not only competent, but are accepted as evidence of the best kind, being admissions against his own interest by him of the existence of his obligation. Here, as in Robert's Appeal, 126 Pa., 102, the entries are made by the person against whose estate claim is made; one who had sole charge of the matters in controversy and kept an accurate record thereof. To the same effect is Hollingshead vs. Allen, 17 Pa., 275, where the Court say that: "The defendant's account book is directly in point and emphatically relevant. * * * Those entries are his own admissions concerning the character of the transaction." The money or estate of his first wife thus clearly shown to have been in him, whether as a debtor or as a depositary is immaterial, the burden of proof is upon him to show repayment. But the proof is exactly the contrary; the record proves not only that he received the money or estate, but it proves that he held it as an apparent debt due his wife during her life and that immediately following her death instead of repaying it to her representative, he transferred and converted it to his own account. In other words, instead of paying her or her estate, he formally paid himself. Up to the time Mrs. Johnston died in 1889 she was under disability and could not have sued her husband, had she desired so to do, for this money, not having this right until the Married Women's Property Act of 1893. It is strongly urged that after this great lapse of time, the presumption of payment is abundantly sustained. And much force for this contention is found in Peter's Appeal, 106 Pa., 340, where, as here, the claim is by a wife or her representative against the estate of her husband, and where it appears that more than twenty-five years after the alleged debt had arisen claim was made therefor, and where the claim was defeated by reason of the presumption of payment after a lapse of twenty-one years. Johnston's Estate No. 1. But it must be noted that there the Supreme Court first found the evidence of indebtedness too vague and uncertain and that the presumption of payment has not been overcome; here there is no uncertain or vague testimony with respect to the origin of this indebtedness and the testator's recognition thereof until a comparatively recent period; in addition thereto, the presumption of payment is completely rebutted by his own evidence which affirmatively shows that he never did pay it to the persons entitled thereto, but transferred it to his own use and added it to his own estate. So also it is ably urged that the statute of limitations is a bar, and certainly if the start of this claim in 1866 and demand therefor only in 1916 is all that were in this case, the statute would clearly be a bar. But it must be remembered that from 1866 to 1889, the date of the death of Mrs. Johnston, she saw fit not to demand payment, and he openly by his book entry acknowledged his indebtedness to her. Immediately following her death, had demand been made, the statute would begin to run, but under the facts it appears that testator within six years from the death of his wife removed to the State of New York and made it his permanent home. This, under the Act of 1895, P. L. 112, tolled the running of the statute, he being a non-resident. Not until after his death were the proofs of his indebtedness disclosed, and promptly letters of administration were taken out and suit was brought for the recovery of this amount in the Common Pleas, where, by agreement of counsel, the controversy was transferred to this Court upon the audit. Instead of this being one of the class of stale claims which this Court looks upon with great suspicion and requires the fullest measure of proof, it is, although well proven, not stale in the sense that the parties who have the right to recover slept upon that right and should be convicted of laches at this time. As stated before, during the lifetime of Mrs. Johnston the testator's written recognition of her claim and her acquiescence in not demanding payment covers a period which cannot be included in the general claim of great lapse of time. Following her death the duty was upon him, not to transfer her estate to himself, but to account for it by taking out letters of administration as the law provides and bringing into Court her separate property for distribution to those entitled thereto. These children or the administratrix of the deceased wife representing the children had no standing to demand the payment of this money to their mother in her lifetime; nor can they be held liable for negligence in not requiring their father, immediately following their mother's death, to take out letters and to account to them for their mother's estate, nor did they have the evidence other than family tradition as to the original amounts which their mother was entitled to until after the father's death and could not, unless he voluntarily admitted the fact, make demand upon him with any prospect of success, in the absence of any acknowledged evidence of indebtedness even had they desired to take the unusual course of compelling their father to account for what they might have had reason to believe he would provide for in some other way. It is suggested that the testator had or believed he had, in effect, accounted for his wife's estate, first, by reason of certain vague statements that he had boarded her mother and her brother, and, second, because he gave or transferred certain of his property to and among his children. The answer to the first suggestion is that there is no shred of evidence upon which to base a fact whereby the testator's debt to his wife could be set off by an alleged boarding claim; the answer to the second suggestion is that, granted that for his own purposes he had the title to his real estate in his wife's name at the time of her death, that his children immediately thereafter deeded their entire interest to him and that he subsequently made some provision for them, this was but a natural duty on the part of the Johnston's Estate No. 1. father to advance to his children in his lifetime certain portions of the inheritance that otherwise they might have been entitled to. A partial division of his estate among his children is not a repayment of his debt to his wife. Manifestly by his will his children are not the preferred partakers of his bounty, nor do they ultimately inherit his estate; he vested the corpus in his grandchildren and he also vested in them their share of income; he provided that if any one died that the share of income should be held in trust for the surviving issue of the remaining children or grandchildren, under which it would seem that the trustees should set aside and hold in trust the income devised to one of the grandchildren named, who died before the testator. A careful examination of the New York cases referred to in the brief, filed by the learned counsel from that State representing the widow, does not change the general conclusion heretofore indicated as to the allowance of this claim. Conceding, as those cases indicate, that the receipt of money by the husband belonging to his wife is payable on demand and that, therefore, the statute would begin to run after demand, it must be remembered that under the law in this State Mrs. Johnston could not bring suit against her husband to recover this money in her lifetime for the reason already indicated; there is no evidence of any demand on her part and under the law, even had demand been made, it could not have been enforced. Therefore, under Boughton vs. Flint, 74 N. Y. (Court of Appeals), the claim could not be barred by the statute. To the same effect is Wood vs. Young, 141 N. Y., 211, although it does not have special application to this case, not being a claim by a wife or her representative against her husband for money belonging to her separate estate. The ultimate conclusion, therefore, is that under the facts and the law this claim must be allowed as presented with interest from the death of Sallie M. Johnston. Descent and Distribution Johnston's Estate No. 2. -Decree- -Exceptions- -Statute of LimitationsPresumption of Payment-Child Dying Intestate. Exceptions to a decree, requiring payment by decedent's estate to the administrator of his deceased wife, will be dismissed when the exceptions are based on the proposition that the suspension of the statute of limitations suspends also during that time the presumption of payment, as the husband, having removed permanently from the State within six years of his wife's death, the bar of the statute cannot be interposed after that time. A debt due from a next of kin and a distributee of the decedent is assets of his estate, and the personal representative is entitled to collect the same from such distributee even though there are no known creditors of the estate. Sur Exceptions to Decree. No. 69 March Term, 1916. O. C. Allegheny County. J. M. Stoner & Sons and Thos. M. Marshall, for accountant. MILLER, J., for the Court in Banc, June 9, 1916. - Supplementing the opinion filed by the Auditing Judge, on the distinguishing features between the case at bar and Peter's Estate, touching the question of presumption of payment, attention is directed to the law pronounced by the Supreme Court of the State, to wit: That the suspension of the running of the statute of limitations suspends also during that time the presumption of payment. It will be remembered that within six years from the death of Mrs. Johnston, her husband permanently removed from the State and the bar of the statute cannot be interposed after that time under the Act referred to. In Penrose vs. King, 1 Yeates, 244, where it appeared that the bar of the statute of limitations had been suspended by an Act of the Legislature, as here under the facts in the case, the Court held that the presumption of payment after the expiration of twenty years could not be pleaded by including within that period the time while the statute of limitations was suspended; it being said: "Neither the English statute of 21 Jac. I., nor our limitation act prescribes the period when a suit on a bond shall be barred, but the judges there adverted to the principle on which the statute of James was enacted, and have determined that after a certain length of time the law would presume that a debt on bonds had been discharged; and the Courts here have adopted the same idea, in order to prevent stale outstanding debts founded on obligations from being recovered unless the delay can be accounted for. Our Legislature for wise reasons has determined that the operation of the limitation act should be suspended between the first of January, 1867, and the first of June, 1874, and we think we tread in the steps of the English judges exactly when we declare our opinion that during this period the presumption of the payment of a bond arising from length of time should also be suspended." The same doctrine is announced in Sommerville vs. Holliday, 1 Watts, 507, stating: "This court have decided and have so directed as a matter of law what shall be sufficient to suspend the presumption of payment arising from lapse of time. This was done in Penrose vs. King, 1 Yeates, 344, one of the first cases involving the question to be reported, and so in the Courts of the United States as well as in the State courts." On the question strongly urged at the argument that even if the final judgment be that the decedent's estate must pay to his deceased wife's administrator the amount of the award, that, inasmuch as William G. Johnston was entitled to share with his children in the distributive share of his wife and that as now alleged, although it does not appear in the record, cne of their children died intestate, unmarried and without issue, as a result Johnston's Estate No. 2. of which her father was entitled to her additional distributive share, that his share of this distribution should now be retained by the accountant instead of the whole being paid to the administrator of the deceased wife, the accountant claiming the share of the father therein. The answer to the proposition is that it is a well recognized rule that a debt due from a next of kin and distributee of the decedent is assets of his estate and the personal representative is entitled to collect the same from such distributee even though there are no known creditors of the estate. This doctrine was announced as early as Eisenbeis vs. Eisenbeis, 4 Watts, 134; it has not been departed from since; it is the legal, and a wise, practice. A careful consideration of the entire case as presented justifies the conclusion that there is no error in the findings of the auditing judge, and the exceptions are dismissed. Monongahela National Bank vs. Dunseith. Bills and Notes—Endorser—Dishonored Note as Collateral to Another Note Subsequent Insolvency of Maker-Directing Verdict. An accommodation endorser is liable on a dishonored promissory note, and it is no defense to contend that when the note became due, defendant expected plaintiff bank to proceed to collect said note, and that at that time the maker of the note had available assets more than sufficient to have paid the same. Nor is it an available defense to aver that after the maturity of said note, and after its protest, it was surrendered to the principal and was thereupon placed as collateral with the plaintiff for the payment of another note of later date, the latter note not bearing on its face any exception or reservation to the plaintiff, or anyone else, of any rights plaintiff might have against defendant or any of the accommodation endorsers. If, as alleged by defendant, the maker was solvent when the note matured, his course was to lift it and sue. When the note matured, it was duly protested, of which protest defendant had due notice. The defendant's liability for the debt was no longer secondary, contingent or inchoate; he could be called upon at any time to make payment. The acceptance of the second note was in no sense an agreement to delay suit on the first. In a suit against an endorser on a promissory note, where the material facts are not disputed, it becomes a question of law for the Court, and if no legal valid defense is set up, a verdict will be directed for plaintiff. Motions for New Trial and for Judgment Non Obstante Veredicto. No. 1641 October Term, 1914. C. P. Allegheny County. R. A. & Jas. Balph, for plaintiff. CARPENTER, J., March 10, 1916.—The facts giving rise to this controversy are practically undisputed. The defendant became accommodation endorser on a note made by Pittsburgh Physicians Supply Company, a corporation, payable at Monongahela National Bank. The note bears date November 1, 1912, payable to the order of the maker, and signed "Pittsburgh Physicians Supply Co., Samuel Dunseith, Treasurer." It is endorsed in the same manner by the maker and also by A. G. Corbett, F. D. Sauff, Jr., and Samuel Dunseith, in the order named, and then by the maker in the manner above indicated. It is not denied that the note was duly discounted by the plaintiff and was protested for non-payment at maturity. Defendant avers that he is an accommodation endorser; that when the note became due he refused to endorse a renewal note and expected that the plaintiff would pro |