74 N.Y.S. 443 | N.Y. App. Div. | 1902
This is a proceeding under the provision of section 2606 of the Code of Civil Procedure, by a residuary legatee of Alexander P„
The deceased executor never filed an inventory and his accounts have never been judicially determined. He died eleven years two months and five days after letters testamentary had been issued to him. On the 25th day of March, 1896, seventeen days after his death, the appellant was appointed his executrix.
It seems to be conceded that if the proceedings had been instituted by the successor of the deceased executor the ten years’ Statute of Limitations would control and that it would not commence to run until the date of the issue of letters to the appellant. The law is so stated in the opinion of the Court of Appeals in Matter of Rogers (153 N. Y. 316), where the petitioner, the administrator de bonis non, was the sole residuary legatee and next of kin. The same doctrine was announced in Matter of Watson (64 Hun, 369) and Matter of Latz (33 id. 618). If the proceeding could have been successfully instituted by anybody, we fail to discover any disqualification on the part of the respondent to initiate it. The contention that the petitioner ceased to have an interest in the property cannot be sustained. Section 1819 of the Code of Civil Procedure, which gave her, as a residuary legatee, a right of action against the executor, expressly provides that the Statute of Limitations does not commence to run against her claim until the accounts of the executor have been judicially settled. Inasmuch, therefore, as thé accounts of the deceased executor were never judicially settled, her rights are not barred. Her right of action' against the executor would doubtless be lost if the action were not commenced within six years after the settlement of his accounts. (Butler v. Johnson, 111 N. Y. 204; Clark v. Ford, 1 Abb. Ct. App. Dec. 359.) If, however, on account of the lapse óf time the deceased executor . could not have been required to account or turn over the money or property of the estate in his hands, the propriety of placing a construction on this section of the Code which will require the exeeu
The will is not before us, but it appears by an affidavit, which is not controverted, that the decedent devised and bequeathed to his executors both real and personal property to hold in trust and invest and pay one-third of the net income to his wife for life, and the other two thirds to each of the surviving children as they respectively become of age, and to pay such sum to each of them during their minority as, in the judgment of the executors, might seem necessary for their support and education; that the testator left four children, the youngest of whom became of age on the 13th day of February, 1895 ; that he died seized of a three-fourths interest in premises No. 100 Greenwich street in this city, which property has not been sold and its income is about $1,200 per annum; that $3,500 was paid by the Manhattan Railway Company for fee damages to said premises pursuant to an agreement made on the 7th
We find nothing in Matter of Rogers (supra) which requires us to hold otherwise upon the facts disclosed by this record. Nor are these views necessarily in conflict with the decision in the second ■department in Matter of longbotham (38 App. Div. 607), which, on authority of Matter of Rogers, overruled its former decision in Matter of Taylor (30 App. Div. 213). Each of these cases arose ■on a proceeding to compel an executor to account during his lifetime and it does not appear in the reported decision of either, as is shown in the case at bar, that- the executor affirmatively acknowledged his trust while it was claimed that the Statute of Limitations was running.
Whether any of the-estate of Alexander P. Irvin has come into
Hpon a proceeding of this nature it is not proper to deny the relief, upon the ground that the Statute of Limitations has run against the remedy unless all the facts upon which the running of the Statute of Limitations might depend are clearly shown. A person obtaining possession of property as executor should not be permitted to acquire title thereto by failure of those interested to require him to account unless there is. no avenue of escape from such an inequitable result. If there be any doubt about the facts, the better practice is to grant the order. The facts may be clearly presented on the account filed pursuant to the order or on the proceedings subsequently had thereon. This seems to have been the primary purpose of the enactment. (Matter of Latz, supra; Matter of Fithiam, supra.) The application of the Statute of Limitations may then be determined more satisfactorily when it is sought to enforce some right based on the accounting. ■
The order should, therefore, be affirmed, .with ten dollars costs and disbursements.
Van Brunt, P. J., Patterson and O’Brien, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.