1 Pow. Surr. 473 | N.Y. Sur. Ct. | 1893
It is an undisputed fact that the deceased admin
The statute of limitations is invoked as a protection by the accounting party, and it would seem that it is a shield of which he may rightfully avail himself here. Administration was granted in October, 1877. One year from that time the distributive shares became due. The administrator next of kin •died in December, 1889. The next year this voluntary proceeding was commenced, and the next year, before its conclusion, Julia Van Wert, the only other next of kin, died. About twelve years, therefore, elapsed before any settlement of the estate was sought or commenced, within which it could have been done. It was held in the case of House v. Agate, 3 Redf. Sur. 307, affirmed by the General Term on appeal, that in such case the statute was a bar. It was also held in that case that the fact that the executor applied for a voluntary accounting did not deprive him of the right to set up the statute. The same doctrine was held in Re Clayton (Surr.), 5 N. Y. Supp. 266. All of the assets of this estate fell at once into the hands of the administrators, and it does not appear that any have since been received. The interest they subsequently received on securities other than such as were accruing at the intestate’s death was not a portion of the assets received by them. It may be said that payments were made by the accounting party to “W. A. Van Wert, co-administrator and next of kin,” as he states in
It seems to me that on both the above grounds the contestants have established no liability to them, on the part of Mr. Riven. If this be so, then the question as ;to his having or not filed proper vouchers is of no concern ¡to the contestants. And, again, if it be correctly held that the moneys paid for or handed to the deceased administrator came into his hands in his official capacity only, then they were not payments, and vouchers are only required for payments made of debts or shares or other liabilities. There should be disallowed to Mr. Riven, however, his costs and charges in actions in which he was concerned as attorney. I so held in the case of Campbell v. Purdy, 5 Redf. Sur. 434. A decree will be prepared according to the views: above expressed, with costs to the surviving administrator.