64 N.Y.S. 667 | N.Y. App. Div. | 1900
Lead Opinion
On the 12th of January, -1871, letters testamentary were issued to the appellant, Mary-E. Gulick, and she took possession of the property of the estate as executrix of the decedent. By the will the petitioners,, who are the grandchildren of .the testator, are entitled to the residuary estate after the termination of .life estates in certain legatees, of whom Mrs. Gulick, the executrix, is the last survivor. The petition states that Mrs. Gulick.has never filed her accounts as executrix, and such facts are alleged as show it to be proper that an
There can be no doubt that Mrs. Gulick, when she assumed thé duties of executrix, became a trustee for the persons who were entitled to share in the estate under the will, and so long as she held the estate in that capacity and did not assume a position adverse to the rights of her cestuis que trustent, the liability to account as trustee existed. The rule is that as long as there is a subsisting and continuing trust, acknowledged or acted upon by the parties, the statute does not apply; but if the trustee denies the right of his cestui que t/rust and the possession of the property becomes adverse, lapse of time from that period becomes a bar in equity. (Kane v. Bloodgood, 7 Johns. Ch. 90.) Until that adverse possession comes to exist and the trust for that reason becomes extinguished, the cestui que trust is entitled to his accounting. (Matter of Petition of Camp, 126 N. Y. 377.)
It is claimed by the appellant here that she has ceased to hold this estate in her capacity of executrix, and that at some time, but just when does not appear,, she took it for life under the will. She bases that claim upon the statement in the petition that the life estate is now enjoyed by her as provided in said will. This state
In that case a general guardian had received in 1866 money improperly of his wards which he had sold. He was entitled .to hold the money during his life, as tenant by the curtesy. -The infants became of age in 1872, and in 1888 they brought a proceeding to compel him to account as general guardian for the money -which he had received in 1866. The court held that the Statute of Limitations was not a bar to the proceeding because the guardian, having obtained possession of the fund in'that capacity, must be deemed to have dealt with it as such as well as iii that of tenant by the curtesy, and, therefore, he occupied the position of a trustee which prevented the running of the statute, and as long as-the money remained in his hands as guardian and unaccounted for* the right of those interested' in the estate to have an accounting,-continued to exist. That is precisely this case. Mrs. Gu'lick took .the property as executrix, and she has never taken any steps to divest herself as executrix and to hold the property as tenant for life, and so long as she holds in both capacities the petitioners are entitled' to an accounting.
But it is said that the petitioners had a remedy at law,, and that the rule is,:that where a remedy at law exists against which the Statute of Limitations might have run, it will also be deemed to; have run again'qt any other proceeding.' (Kane v. Bloodgood, supra.) But the-respondents had no other remedy. They were not entitled to this property ás lohg as Mrs, Gulick continued to live.'- They were
The judgment must, therefore, be affirmed, with costs to the respondents.
Pattebsoh and Hatch, JJ., concurred; Yah Beuht, P. J., concurred in result; Ihgeaham, J., dissented.
Dissenting Opinion
I do not concur in the affirmance of this decree. This proceeding was instituted by a citation issued in the Surrogate’s Court requiring the appellant to show cause why she should not make, render and file a sworn account as executrix of the last will and testament of Isaac F. Jones, deceased, based upon a petition of Millie A. Jones and Mary E. Gulick, which alleges that the petitioners were granddaughters of the said Isaac F. Jones, deceased, who died in or about the year 1870, leaving a last will and testament, by the terms of which the petitioners were entitled to all the residuary estate of the deceased, both real and personal, subject to a life estate of Mary Ann J ones (wife of decedent) and Mary Elizabeth Gulick, née Jones (a daughter of decedent); that the said Mary-Ann Jones is now deceased, and the said life estate is now enjoyed by the survivor, Mary Elizabeth Gulick, as is provided in said will; that letters testamentary on the estate of the said deceased were granted by the surrogate of the city and county of New York to the said Mary Elizabeth Jones (now Gulick) on the 12th day of January, 1871; that the said Isaac F. Jones left at the time of his death certain real estate, situated in the city and county of New York, and certain personal property; that the said executrix has disposed of and appropriated to her own individual use a large amount, if not all, of the personal property which came, to her as executrix aforesaid. Mary E. Gulick answered this petition, alleging that ■ on ■ the 28th day of April, 1873, she filed her account of proceedings as executrix, together with the vouchers in support thereof ; that this
Decree affirmed, with costs.