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DIXON ESTATE (09/26/67)


decided: September 26, 1967.


Appeal from decree of Orphans' Court of Butler County, No. 442 of 1964, in re first and final account of Hazel D. Seymour and Roy Thomas Clark, executors of estate of John M. Dixon, also known as John Merrill Dixon, deceased.


Carmen V. Marinaro, for appellant.

Roy Thomas Clark, with him William C. Robinson, and Kenney, Stevens, Clark & Semple, and Henninger & Robinson, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Musmanno dissents.

Author: Roberts

[ 426 Pa. Page 562]

Appellant, Ula G. Hoover, was employed by John M. Dixon as office manager of Lawrence Copper & Bronze Co., a Pennsylvania corporation. Some time during October, 1958 Dixon sold this concern, although Mrs. Hoover continued to be employed in a similar capacity by the successor company. Dixon died on September 10, 1963; his will was admitted to probate on September 18, 1963, and letters testamentary were advertised for the first time on September 19, 1963. The first and final account of the executors of Dixon's estate was filed on December 14, 1964. Appellant then filed exceptions to this accounting on the ground that the account failed to include $25,000 owed to her under an oral contract with Dixon. This sum was allegedly due for services rendered in connection with the sale of Lawrence Copper -- according to appellant, Dixon promised to pay her a commission of 10 per cent of the purchase price if she was able to obtain a purchaser for the business.

We hold that appellant's claim is barred by the statute of limitations, Act of March 27, 1713, 1 Sm. L. 76, § 1, 12 P.S. § 31, which requires that contract actions be brought within six years after the cause of action has accrued. In any contract action, including actions against an estate, the claimant bears the burden of proving the terms of the contract. See, e.g., Cameron Estate, 388 Pa. 25, 130 A.2d 173 (1957); Hirst's Estate, 274 Pa. 286, 117 Atl. 682 (1922). One of these terms is the time at which the claimant's performance was to be completed. This date fixes both the time claimant could first sue for breach of contract*fn1

[ 426 Pa. Page 563]

    as well as the date at which the statute of limitations begins to run. 6 Williston, Contracts § 2004 (Rev. ed. 1938). The auditor and the court below agreed that appellant's cause of action accrued in October, 1958, a conclusion we see no reason to disturb for plaintiff failed to meet her burden of demonstrating a later date.*fn2

Appellant's exceptions were filed on December 18, 1964, more than six years after October, 1958.*fn3 To avoid the bar of the statute, appellant first contends that under the Act of August 17, 1951, P. L. 1258, § 3, 20 P.S. § 320.701 (Supp. 1966), the executors should have filed their account at the expiration of six months from the first complete advertisement of the original grant of letters and that, since the filing of an account tolls the statute of limitations as to all claims not barred on the date the account was filed,*fn4 had the executors filed at the expiration of the six month period, appellant's claim would have been timely.

[ 426 Pa. Page 564]

The sanction placed upon an executor who fails to file his account at the expiration of six months, however, is not an extension of the period of limitations until the date of filing but rather personal liability for any losses thereby caused to the estate. See Stephen's Estate, 320 Pa. 97, 181 Atl. 559 (1935); Istocin's Estate, 126 Pa. Superior Ct. 158, 190 Atl. 382 (1937).*fn5 We find no warrant in either the Fiduciaries Act or the case law decided pursuant thereto for an extension of the period of limitations merely because an executor did not file his account at the earliest permissible moment.*fn6 Furthermore, appellant, as an alleged creditor of the decedent, could have filed a petition requesting that the executor be cited to file an account. See Kilpatrick Estate, 368 Pa. 399, 84 A.2d 339 (1951); Estate of Lightner, 144 Pa. 273, 22 Atl. 808 (1891). Given the availability of this procedure, appellant cannot complain that the account was not timely filed.

Although appellant's brief is somewhat murky, it appears that her second contention is the assertion that, if the personal representative of the decedent has knowledge of the existence of a claim, the representative must pay the claim notwithstanding such claim

[ 426 Pa. Page 565]

    has not been presented or filed. Cited for this proposition is Miller v. Hawkins, 416 Pa. 180, 205 A.2d 429 (1964). There is testimony in the record which indicates that one of the executors of Dixon's estate discussed Mrs. Hoover's claim with her. Miller, however, contains no support for appellant's theory that mere knowledge of a contingent claim compels the executor to pay that claim despite the fact that the statutory period has expired prior to any filing.

Miller did not involve an allegation that the six-year statute of limitations for contract claims had run. Instead, the case was concerned with the Act of August 17, 1951, P. L. 1258, § 3, as amended, 20 P.S. § 320.732 (Supp. 1966) which provides that an executor who distributes assets more than one year after the letters of administration have been advertised is not personally liable to a creditor of the estate who did not give notice of his claim during that year. Neither the statute involved in Miller, nor the cases holding that under certain peculiar circumstances an executor having personal knowledge of a claim cannot avoid paying it by invoking this statute, has any relevance to the present situation where no distribution of assets has yet been made and the claim itself is barred because it was not brought within the period fixed by the six-year statute. We have frequently said, and reiterated in Miller, that: "'Knowledge by a fiduciary of the existence of a contingent claim does not relieve the presumptive creditor of the duty to give notice thereof under the Fiduciaries Act of 1917.'" Miller v. Hawkins, supra at 198, 205 A.2d at 437-38; Doster Estate, 346 Pa. 455, 458, 31 A.2d 142, 144 (1943).

In view of our conclusion that appellant's claim is barred by the statute of limitations, we find it unnecessary to consider her other contentions.

Decree affirmed. Each party to pay own costs.


Decree affirmed.

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