106 N.Y.S. 818 | N.Y. App. Div. | 1907
This is an appeal from an order made by the surrogate of Kings county denying the petition of the appellant who sought to compel the executor of the estate of Haney Anderson, deceased, to render and settle his account. The petitioner is a legatee named in the last will and testament of said deceased and alleges in his petition that his legacy is due and unpaid and that Lott has never rendered an account of his proceedings as executor.
It appears from the answer-of the executor that there came into his hands upon the death of the testatrix the sum of $1,862.14 which he distributed among the legatees named in her will, paying to the petitioner his share thereof; that in August, 1899, the petitioner came into the possession of further assets belonging to the estate of Haney Anderson, of which he retained an amount more than sufficient to pay
It is well settled that the statute does not commence to run in favor of a trustee or executor against one otherwise entitled to an accounting, until such representative has by some act openly repudiated his trust and liability. (Matter of Ashheim, 111 App. Div. 176; affd., without opinion, 185 N. Y. 609.) We are unable to find in this record any act of the executor.that would set the Statute of Limitations running in his favor. He shows that he is yet engaged in the discharge of his duties as executor by instituting a proceeding to recover money claimed by him to belong to the estate of testatrix that he might distribute it under the provisions of her will, and in his affidavit says, substantially, that he does not propose to account until such money is paid to him. We think the petitioner is entitled to have the questions presented by his petition and the answer of the executor determined in Surrogate’s Court, and that right is not barred by the Statute, of Limitations. It may be, however, that the evidence will disclose that the statute has run, but that does not appear in this record. The executor seems to rely on the mere lapse of time, which is not of itself a defense to the petitioner’s attempt to compel him to account, and such question should not be decided before the accounting is had. (Matter of Irvin, 68 App. Div. 158; Matter of Ashheim, supra ; Matter of Meyer, 181 N. Y. 553.)
The order of the Surrogate’s Court should be. re versed, and an order directing the respondent to render and settle his account in the Surrogáte’s Court of the county of Kings granted, with costs to the appellant payable out of the estate.
Hirschberg, P. J., Woodward, Hooker and Gaynor, JJ., concurred.
Order of the Surrogate’s Court of Kings county reversed, and order directing the respondent to render and settle his account in that court granted, with costs to the appellant payable out of the estate.