61 Barb. 190 | N.Y. Sup. Ct. | 1871
The only question in this case is, whether the statute of 'limitations had run against the note in question when it was presented as a claim against the estate, of which the defendant wa's the surviving administrator. The note was presented as a claim by the plaintiffs shortly prior to the 11th of July, 1868, and was disputed by the defendant on the ground that it was not a valid claim against the estate. It wasothereupon referred, according to the statute. The note was the joint note of the defendant and his intestate, William G-renell, dated March 19, 1853, payable six months after date, with
The important question, therefore, is, whether the payment subsequently made by the agent of Mrs. Charlotte Grenell, on the note in question, had the effect to save the note from the operation of the statute up to that time. This payment was made on the 21st of April, 1864, by the agent, Wardwell, aiid by him indorsed on the note, and was of the amount of $379.62. The fund out of which it was made was not assets belonging to the estate, but belonged to Mrs. Grenell in her own right. She had about $1000, which she had obtained from a sale made by her of certain real estate which she had bid off at a foreclosure
There is nothing ‘to show that as administrator she intended to save the demand from the operation of the
The referee was-right, therefore, in his conclusion of law, that this payment was not such a payment as would prevent the running of the statute.
The doctrine of trustees and cestuis que trust, which the appellant’s counsel seeks to apply to the case, is not applicable. It is simply a question of debtor and creditor, and whether as between them the statute has run against the Obligation. (Paff v. Kinney, 1 Bradf. 1.)
The demand had never been presented as a demand against the estate, until it was presented by the plaintiffs. This is plain from the fact merely of its presentation at the time it was disputed, and the contrary is not shown. Had it been previously presented and allowed, there was no necessity for a new presentation, or propriety in making it. When it was presented, the administrator had- a perfect right to dispute it,.as he did,-and the question was thus raised as to whether it was then a valid subsisting claim against the estate.
The appellant’s counsel contends that the partial payment made by the defendant as administrator, upon the note, from the assets of the estate in his hands, on the 17th of January, 1860, had the same effect, and placed the demand in the same situation, in which it would have been placed, had it been presented in pursuance of the notice provided for by 2 R. S. 88, § 34, and allowed by the administrators.
But this is not so. Presentation and allowance under these provisions of the statute are quite different from the voluntary partial payment by one 'administrator, from assets in his hands, not only in the form and nature of the act, but'in its legal consequences. The latter is only evidence of a new promise, from the date of which the six
The former is a proceeding under the statute by which a claim presented and allowed may be deemed as adjusted, arid its proportional share of the assets appropriated to its payment.
No question is raised as to the right of. the defendant to avail himself of the defense of the statute of limitations on this trial, in case the statute had run against the demand.
The judgment is right, and must be affirmed, with costs.
The presiding justice, having heard the case at special term, did not sit.
Johnson and Talcott, Justices.]