4 N.Y.S. 934 | N.Y. Sup. Ct. | 1889
The only question presented on this appeal is whether the right of recovery upon the demand of the respondent, and for which the judgment was ordered, was barred by the provision of section 1822 of the Code of Civil Procedure. The facts are as follows: The defendant was duly appointed executrix of the estate of John H. I. Diefendorf some time in 1882. The 22d day of March, 1883, said executrix, by order of the surrogate of Oswego county, duly advertised for the presentation of claims, and continued the same down to September 28, 1883. On the 22d day of September, 1883, the plaintiff served upon her a written claim against the estate, duly verified, and which was then all due, and apparently barred by the six-years statute of limitations. On the 22d day of October, 1883, the defendant served on him a written notice that she disputed and rejected the claim. The matter continued without any action or proceeding on the part of the plaintiff to collect, nor were any negotiations between the parties in relation thereto had until March 2, 1885, when the parties entered into a written agreement, in form as provided by statute, to refer the same. This was approved by the surrogate of Oswego county, and on the 5th day of March, 1885, an order was entered in the supreme court, referring the matter in pursuance of said agreement. The case was brought on and tried, and on July 25,1885, said referee made his report, finding there was due and owing to the plaintiff from said estate $1,948.31. Exceptions were filed to the same, and on plaintiff’s motion the report was confirmed, and judgment ordered for said sum, with costs against the estate.
The contention by the appellant is that at the time said agreement to refer the claim was entered into by said executrix the same was barred by the short statute of limitations, and that she, as representative, could not revive the same as a debt against the estate to the prejudice of the creditors, heirs to the estate, or beneficiaries under the will. This claim is based upon section 1822 of the Code of Civil Procedure, as follows: “When an executor or administrator disputes or rejects a claim against the estate of the defendant, exhibited to him either before or after the commencement of the publication of notice requiring
Judgment was ordered against the estate of the deceased, because the executrix had entered into an agreement to refer, notwithstanding the six-months limitation of the statute, eighteen months after the claim was rejected, and twelve months after it ceased to have any validity or legal existence as a demand against the estate; that such agreement served to revive the claim, and restore it as an existing obligation; that the bar the statute provides does not depend upon the omission of the parties to refer or the claimant to bring his action within six months from the dispute or rejection of the claim, but instead was simply contingent upon the question whether the reference had at any time been agreed upon, although the same was made after the expiration of the limitation. If this construction shall be given the statute, it will be in the power of an executor or administrator, at any time during his official life, to revive any claim which may have been presented, however remote from the time of its rejection, and subject the estate to the contingency of its payment, notwithstanding the law had before pronounced it discharged. It is held in Selover v. Coe, 63 N. Y. 439, under a preceding statute similar to the above, “when a creditor has presented his claim, and the claim has been rejected, and six months have elapsed without bringing an action to enforce the same, that this is a defense, not only to an action against the personal representatives of the deceased, but also to an action brought to enforce the same against the heir at law.” In Cornes v. Wilkin, 79 N. Y. 129, it is held that an offer to refer by the personal representative, made within six months after the claim was rejected by him, did not prevent the operation of the short limitation upon it. The law is settled that a personal representative cannot, by any act of his, restore a claim against the estate he represents which is barred by the six-years statute of limitations. Bucklin v. Chapin, 1 Lans. 443; Bloodgood v. Bruen, 8 N. Y. 362; McLaren v. McMartin, 36 N. Y. 88; In re Kendrick, 107 N. Y. 108, 13 N. E. Rep. 762. These cases seem to me analogous, and the rule alike applicable to each. While the executor may enter into the agreement to refer, such agreement does not restore the demand, and, the limitation having run, the same may be interposed as a defense upon the trial.
■ The respondent cites Bank v. Speight, 47 N. Y. 668, in support of the doctrine contended for by him. The case does not aid him. The claim was presented on the 9th of February, 1869; the personal representatives proposed and agreed in writing to refer the claim; and a referee was named therein on