Opinion by
Henderson, J.,The plaintiff’s action was brought on an obligation given by the defendant to him to refund a sum of money which the plaintiff as trustee for the defendant paid to her, pending the determination of the question in the Orphans’ Court of Allegheny County, whether payment should be made to her or to the Safe Deposit and Trust Company of Pittsburgh, trustee. B. L. Fahnestock died January 3,1888. Under his will one-sixth of the residu*359ary estate was given to the plaintiff in trust to pay the income therefrom to Levi L. Fahnestock during his natural life and at the death of Levi, in default of child or children, the principal to revert to the legal heirs of the testator. The amount due to Vernon Fahnestock under the trust above stated was paid to him by the executors of B. L. Fahnestock’s will. Levi died in 1903, and did not leave a child to survive him. As a consequence the defendant, as one of the heirs of B. L. Fahnestock, became entitled to a share of the principal of the trust estate. Vernon Fahnestock as trustee filed his account February 5, 1906, and on March 25, 1907, the auditing judge of the Orphans’ Court directed that the sum of |555.38 be paid to the defendant by the trustee. On June 19,1907, this amount was paid to the defendant and as security to the trustee she gave him the obligation which is the basis of the action. This was in the form of a receipt which also contained a recital of the circumstances of the payment, the possibility that the trustee might be required to pay the fund to the trust company and an agreement to refund the same if it should be determined that the defendant was not entitled to receive it. Previously to the giving of the receipt exceptions to the adjudication of the auditing judge had been filed and on the hearing of these exceptions in the Orphans’ Court it was decided that the fund in question was payable by the trustee to the trust company and not to the defendant. Thereupon, the plaintiff was required to pay to the trust company the fund which he had theretofore given to the defendant. On a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defense the learned judge of the court below held the affidavit of defense insufficient and thereupon judgment was entered for the plaintiff. The sole defense presented in the affidavit was that the defendant is relieved from liability with respect to the whole of the plaintiff’s claim by reason of the statute of limitations of March 27, 1713, limiting the time within which *360actions may be brought, together with the supplements and amendments thereto, and also by the provisions of the Act of June 30, 1885, P. L. 203,- limiting the time within which actions may be brought on refunding bonds. The first branch of this defense was abandoned and the case is rested by the appellant’s counsel on the single question: “Is the Act of 1885 applicable to the instrument on which the suit is brought?” That act provides a limitation of the time within which an action may be brought on certain refunding bonds. The period is limited to five years from the date of the bond with the provision that “Where the creditor shall be within the age of 21 years, non compos mentis, imprisoned, or from or without the United States of America, or where a creditor whose debt shall not mature within such period, shall file within the said period in the office of the clerk of said court, a copy or particular statement of any bond, covenant, debt or demand upon which his claim arises, then and in any such cases an action may be brought by the creditor at any time not exceeding two years from the coming of age, or removal of such disability of the creditor, or the maturing of the debt or demand aforesaid.” In the light of all of its provisions we agree with the learned judge of the court below that the act relates to the distribution of the estate of a decedent by the executor or administrator. The promise sued on was not so given. The distribution of the‘decedent’s estate had taken place a long time before the date of the receipt. Under the will Vernon Fahnestock became entitled to one-sixth of the residuary estate and this he received from the executors and had exercised control over it for many years. It was impressed with a trust to be sure, but the administration of the trust was vested in Vernon Fahnestock. It was to him the cestuis que trustent were to look for their share of the fund. When the defendant, therefore, gave her receipt to the trustee she was not dealing with executor or administrator. She was not taking part in the distribution or partition of the estate. She was accepting *361from the trustee, to whom the fund was bequeathed, a share to which, it was believed, she was entitled. They were dealing with what had been separated from the estate of the testator long since through the payment made by the executors to the trustee. After that date the executors had no concern with the control of the fund. The trustee was solely responsible for its administration. Whatever the obligation may be called it was not, therefore, given on the distribution or partition of the decedent’s estate. Its purpose was to make the trustee secure in the event that it should be finally determined that the Safe Deposit and Trust Company rather than the defendant was to receive the money. The ownership of the fund was not affected thereby, but the custody merely. She accepted payment from the trustee with a knowledge that it was uncertain whether the payment should be made by the latter to her or to the trust company and the promise was wholly independent of the distribution of an estate.
The affidavit did not disclose an available defense therefore, and the judgment is affirmed.