1 Connoly 323 | N.Y. Sur. Ct. | 1889
It is alleged in the petition in this matter that, in 1873, a judgment, construing the will of the testator, was rendered by the Supreme Court, in and by which it was adjudged, among other things, that the petitioner, who was then a minor, was entitled to one fifth part of the residuum of the real and personal estate of the deceased. It does not appear what sum is claimed by the petitioner, but that portion in which she alleges an interest is understood to be very considerable in amount.
The testator bequeathed the use of $10,000 to Elizabeth Maria Phillips, a grandchild, and at her death to her surviving issue, if any, and if none, then one fifth was given to the petitioner. It does not appear whether she is living, or what has resulted from that provision, but it seems to be assumed that the petitioner is interested in no trust created by the will. If, however, her right to share in that fund be still in abeyance, she can maintain no proceeding for its recovery now, while, at the same time, the subsistence of that .trust would not have prevented her from taking steps for the recovery of any other legacy given directly to her, and which became due at the end of a year from the death of the testator. The only question discussed is in regard to the statute of limitations, and its effect upon the petitioner’s claim.
There is no doubt that the existing statutes upon
It is insisted by counsel, and it has been so held by some of the courts, that the above section is applicable to Surrogates’ Courts. This would seem to be an error. Title III. of Chap. XV. of the Code is declared to refer to “ Actions relating to the estate of a decedent; ” and the first article of that title, in which section 1819 occurs, is stated to be in regard to an “ Action by or against an exécutor or administrator.” It will be observed that nothing is said about special proceedings, nor does it seem by any provision, to have been made applicable to them. The whole title relates only to actions, and the section itself provides
The petitioner’s counsel cite the case of Drake v. Wilkie, 30 Hun 537, as an authority to show that the statute cannot be successfully interposed in this proceeding. In that case, the legacy became due in 1873 ; the legatee lived in the state of Missouri, and
Even if the ten years’ limitation prescribed by section 388 could be invoked, and it is not believed it could, the claim of the petitioner will still be barred.
It is difficult to understand the raison d’etre of section 1819. When section 9, 2 R. S. 114, was enacted there was a cause for it which we understand. Then, there was no provision for docketing a decree of the Surrogate for the payment of money. He could not proceed to enforce obedience to it by attachment proceedings ; it was no lien upon real estate, while the section, authorizing an action to be commenced, gave a wider range of remedy. At present, such a decree may be docketed and become a judgment of the Supreme Court, with like force and effect as if rendered by that court (Code Civ. Pro., § 2553), and, by the next section, the Surrogate himself may issue an execution, the scope of which shall be the same as if it were an execution issued out of the Supreme Court. It is not easy, therefore, to discover any additional advantage that a party interested in the estate could gain by bringing an action which should result in obtaining a judgment therein in the Supreme Court.
However much it may be a subject of regret that this legatee or distributee, as the case may be, is precluded by law from the recovery of, perhaps, a large sum otherwise justly belonging to her, it must be borne in mind that it springs from her own delay in availing herself of the opportunities once afforded her.
The application must, therefore, be denied.