In re the Judicial Settlement of the Account of Mathewson

264 A.D. 939 | N.Y. App. Div. | 1942

Decree reversed on the law and facts and proceeding dismissed, without costs of this appeal to any party. Memorandum: On August 22, 1921, Dana Mathewson (the administrator) and the petitioner Mildred Hubbard, executed and delivered to Minnie E. Mathewson a deed of their respective interests in certain real property owned by the deceased. At the same time Minnie E. Mathewson and Dana Mathewson executed a deed conveying their respective interests in certain other real property owned by the deceased to Mildred Hubbard, the petitioner herein. Certain distributions of personal property had been made prior thereto. The parties were all present at the túne of the execution and delivery of the deeds in the office of the attorney who was handling the estate. Each of them, including Mildred Hubbard, the petitioner herein, and in each others’ presence, represented to the attorney that the transfer of the real property completed the final distribution of all of the property of the deceased. During the following twenty years until Mildred Hubbard filed a petition to compel the administrator to account, Dana Mathewson, the administrator, exercised individual ownership over any property remaining in his hands. In 1924 Mrs. Hubbard wrote a letter to the attorney for the estate in which she stated in substance that although the administrator claimed that the estate was entirely settled, she was in doubt as to whether he had correctly informed her. She made no move to compel an accounting for a period of about twenty years. We conclude from the evidence that the administrator repudiated his trust as administrator to the knowledge of Mildred Hubbard on August 22, 1921, and that the ten-year Statute of Limitations is now a bar to the proceeding to compel him to account. (Matter of Deitz, 134 Misc. 393, 397; Matter of Asheim, 111 App. Div. 176; affd., 185 N. Y. 609; Matter of Meyer, 98 App. Div. 7; affd., 181 N. Y. 553; Matter of Beard, 141 Misc. 888; Matter of Menahan, 224 App. Div. 139; Matter of Jacobs, 257 id. 28; Matter of Griffin, 170 Misc. 1066.) All concur. (The decree judicially settles the accounts of an administrator.) Present — Crosby, P. J., Cunningham, Taylor, Dowling and MeCurn, JJ.