*568Opinion,
Me. Justice Steeeett:As a general rule, it cannot be doubted that in an action against the personal representative of a decedent, to establish a debt against the estate, Courts of Common Pleas have concurrent jurisdiction with the Orphans’ Court: Swain v. Ettling, 32 Pa. 486; Kimble v. Carothers, 81 Pa. 494. Indeed, it is sometimes necessary that creditors should have their unsecured claims adjudicated in a common law court, for the purpose of continuing their lien against real estate of which their debtors died seised. Our statute provides 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 his decease, unless an action for the recovery thereof be commenced and duly prosecuted against his heirs, executors, or administrators within that period, etc. It sometimes happens, that, for reasons beyond the control of personal representatives, the estate cannot be settled within the five years, and thus it may become necessary for creditors to preserve the lien of their unsecured claims. •
The plaintiff claims to be, and for the purposes of this case it must be assumed that he is, a creditor of his father’s estate. As such he had an undoubted right to have his claim adjudicated by the Court of Common Pleas, unless there is something peculiar in his status or relation to the estate that excludes him from that jurisdiction. Prior to the trial, there was nothing on the record to indicate that his relation to the estate was any other than that of an ordinary creditor endeavoring to have his claim adjudicated. On the trial, however, it was shown that he was one of the executors of his father’s will, and united with his co-executrix in proving it, and taking out letters testamentary; but it did not appear that he took an active part in the administration of the estate, or that he received any of the assets. On the contrary, it was shown that his stepmother, co-executrix, assumed to be and really was acting executrix, and, as such, received all the assets, and, with the exception of a few unimportant acts, administered the entire personal estate, and filed what purports to be a separate account, which was confirmed by the court. That account is entitled: “ First and final account of Mrs. M. A. Pringle, acting executrix of William Pringle, Jr., late of Portage township, *569deceased.” In it she charges herself “ with the real and personal estate bequeathed to her by the will of said decedent, (no appraisement of the same being made.) ” She also takes credit for payment of certain bequests, debts, and expenses of administration, aggregating $1,898.28; but, of course, not exhibiting any balance, generally, or to herself as residuary legatee.
Two points for charge were submitted by defendant: “ (1) That the Common Pleas has concurrent jurisdiction of all disputed claims against the estate, with the Orphans’ Court;” and “ (2) that the rules of court provide expressly that all parties to a suit shall be taken to be in the way they stand on the docket, unless denied by proper objection, before plea pleaded.”
The second was substantially, and, as we think, erroneously, refused. The rule of court was evidently intended for just such cases as the one before us. The first point was affirmed, but the jury was instructed, in the same connection, that there were no facts for them to pass upon, and thereupon a verdict was directed for defendant.
According to the rigid rules of the common law, this instruction might be sustained; but, under the changed conditions now existing in this and other states of the Union, as to the effect of acceptance of the office of executor, either by a debtor or creditor of the testator, those rules have been considerably modified. At common law, the appointment of a debtor as executor operated, not merely as an extinguishment of the legal remedy for the collection of the debt, but as an absolute discharge of the debt itself, except in case of a deficiency of assets to satisfy the claims of creditors: 2 Wms. on Executors, 1125. But, as was said in Griffith v. Chew, 8 S. & R. 31: “ This doctrine of extinguishment has become obsolete, in consequence of the application of the principles and rules of equity, unless it appears the testator, by naming the debtor his executor, gives Mm not only the office of executor, but some beneficial interest. He is considered as a trustee, holding a resulting trusteeship for those entitled either as residuary legatees or next of kin. At no one time, in this state, was it an extinguishment of the debt, for the executor has always been held as a trustee: Wilson v. Wilson, 8 Binn. 557; and an action for money had and received will lie against him *570in his personal character to recover the distributive share. The executor takes nothing but what is given him by the will, and this, even before the act of 7th April, 1807, which expressly enacts that in a will, not disposing of personal estate, the executor shall distribute the residue among the next of kin.” The decisions in Massachusetts and New Jersey are to the same effect: Winship v. Bass, 12 Mass. 199; Wood v. Tallman, 1 N. J. Law 158. Our act of February 24, 1834, § 6, P. L. 73, following the decision in Griffith v. Chew, supra, declares that “ the appointment of any person to be an executor shall in no case be deemed a release or extinguishment of any debt or demand which the testator may have had against him,” etc.
Again; the creditor of a testator, accepting an appointment as executor, enjoyed at common law the privilege of retaining, for his own debt, a sufficient sum out. of the assets, in priority to all other creditors of equal degree. That privilege, however, was not an extinguishment of the executor’s claim, unless he had sufficient assets in his hands applicable to debts of same degree as Ms own. If he had such assets, that fact, in connection with his privilege of applying the assets to his own debt, operated as a satisfaction or extinguishment thereof, because he was within the rule that the person who is to receive the money is the person who ought to pay it; but if he had no assets, the rule did not apply. The debt, in other words, was not extinguished, except upon the assumption that the executor had assets which he could retain to pay himself: 2 Wins, on Executors, 1130.
Under our system of distribution, priority over other creditors, of same grade or class, is prohibited, and hence the privilege of retaining gives the executor no special advantage over other creditors. If the assets are sufficient to pay creditors in full, the executor, in possession of such assets, may apply the same to his own debt, subject to the right of legatees and distributees to contest the validity of Ms claim, etc. In the case before us, the evidence shows that plaintiff never had in his possession any assets applicable to the payment of his claim. If Ms claim is valid, (and the evidence tends to prove that it is,) he is still a creditor of his father’s estate, and, in some form, should be permitted to assert his claim. The naked objection *571that he is one of the executors, but without assets, is purely technical, and ought not to prevent him from having his claim adjudicated in a court of otherwise competent jurisdiction, unless it cannot be avoided. The suit is brought in his own name, as an individual creditor, against an acting executrix, who in the statement she filed in the Orphans’ Court admits she is in possession of the assets, except so far as she applied the same to payment of the debts, etc., specified in that statement. As a personal representative of the testator, she is fully competent to act and make such defence as may be necessary.
If plaintiff’s claim might be asserted in equity, why can it not be sustained at law, under our peculiar system of administering equitable principles in common-law forms of procedure ? In Chalfont v. Johnston, 3 Y. 16, it was strongly intimated that such an action could be maintained. In that case it appeared that Johnston, the obligor in a bond, appointed an executor who afterward became one of the executors of the obligee, Mary Goodwin. One of her executors, Frances Goodwin, assigned the bond to Chalfont, plaintiff in the suit on same bond. It was contended that it was the obligee’s folly to appoint as one of her executors the same person who was known to be the executor of the obligor, but the court said: “If this technical nicety was intended to be insisted on, it should have been pleaded in abatement, like the case of part owners not sued: Rice v. Shute, 2 W. Bl. 696; Abbot v. Smith, 2 W. Bl. 947; Rice v. Shute, 5 Burr. 2613; Mitchell v. Tarbutt, 5 Term R. 651. Perhaps it would be difficult, if not impracticable, to have given the plaintiff a better writ. Caleb Johnston was not compellable to join in the assignment, nor could he be reasonably expected to join in a suit against himself. Under the circumstances, a bill would certainly be supported in chancery against the now defendant. Courts in this state adopt the rules of equity, which form a part of our law.” In Hall v. Pratt, 5 Ohio 72, where a creditor was appointed administrator of his debtor, with another person, but received no assets which he could retain for the payment of his debt, and died, it was held that his administrator could maintain an action against the surviving administrator, on the ground that plaintiff’s intestate received no assets, and therefore it could not be assumed that the debt was paid or extinguished. In Lowe v. Peskett, *57216 C. B. 500, a testator appointed, as one of bis executors, a creditor wbo was tbe payee and bolder of bis note. Tbe executor indorsed tbe note to a third party, wbo brought suit thereon against tbe executors of tbe testator, maker of tbe note. It appearing that tbe note bad not been satisfied out of tbe assets of tbe deceased maker, tbe plaintiff was permitted to recover.
If tbe plaintiff in this case bad received tbe assets, and filed an account in which be took credit for tbe amount of bis claim, that credit item might have been excepted to by bis co-executrix, wbo is also residuary devisee, etc. In that event she would have occupied a position similar to the one she now occupies as defendant in this suit. Tbe case was ruled out of court on a bare technicality, that could not have affected tbe merits of tbe claim. If tbe rule of court above referred to bad been enforced, no ground for that technicality would have existed on tbe record. But, aside from that, the action should have been sustained, and tbe case submitted to tbe jury on its merits.
Judgment reversed, and a venire facias de novo awarded.