1 Bradf. 1 | N.Y. Sur. Ct. | 1849
This is an application by Maria A. Faff, executrix of the last will and testament of Joseph Delacroix, deceased, against Franklin S. Kinney, her co-executor, for the enforcement of a decree of the Surrogate of the county of Yew-York, made March 2, 1842.
This decree was rendered upon a final accounting by the executor and executrix, and directed the payment of $1596 53, to the Mayor, Aldermen, and Commonalty of the city of Yew-York, as a dividend on a debt then due the Corporation, arising on a decree of the Court of Chancery against the estate of the decedent for a deficiency ascertained on the sale of mortgaged premises, by foreclosure; the mortgage foreclosed having been executed by the decedent and assigned to the Corporation. At the final accounting before the Surrogate, it appeared that there remained in the hands of Mrs. Faff, the executrix, the sum of $1365 41; and in the hands of Mr. Kinney, the executor, the sum of $768 65. After ascertaining and directing the dividends to be paid out of this fund to sundry claimants, and among them, the amount above mentioned to the Corporation of the city of Yew-York, the decree proceeded in the following terms : ‘‘ And as it ig advisable that the said sums be all paid out by one person, it is further ordered and decreed that the said Maria A. Faff, executrix
The Corporation not having required payment of the amount directed to be paid them by the terms of this decree, Mr. Kinney on 25th January, 1845, paid one half of the sum, being $798 27* to Mrs. Paff* on her giving a bond with smeties conditioned for the re-payment thereof to Mr. Kinney, or to the Corporation, in case the Corporation should thereafter require or insist upon payment. The recital contained in the bond describes the payment by Kinney, as made to “Maria A. Paff, executrix of the will of Joseph Delacroix, deceased,” and the object of the payment is declared to be “ to the end that the said sum so received may be held on deposit by her until payment of the said sum so ordered to be paid to the said, the Mayor, &c., shall be required or insisted upon by them, &c.”
Subsequently, the Corporation having by the sale of the property mortgaged by the deceased, and bought in by them at the sale under the foreclosure, realized a sum exceeding the original mortgage, interest and costs, Mrs. Paff petitioned the Common Council for an assignment of the Smrogate’s decree, representing herself “ as a principal legatee, and one of the executors in the will of the said Joseph Delacroix, named.” On January 29, 1848, the Common Council passed a resolution directing the Comptroller to “ cause a release to be given” to Mrs. Paff “ for the amount” of the Smrogate’s decree of March 2,
To this application Mr. Kinney, in the first place, interposes the statute of limitations.
The Surrogate’s Court is a court of “ peculiar and special jurisdiction,” (2 R. S., p. 317. 3d ed. Chap. 2, Title 1,) and not a Court of Record, (Ibid., p. 375. §1; Wheaton vs. Fellows, 23 Wendell, 375; Croswell vs. Byrnes, 9 Johnsons R., 287; Lester vs. Redmond, 6 Hill., 590; The People vs. Corlies, 1 Sandford’s Sup. Ct. R., 228.) The application is now made by a new party in interest, claiming as assignee of a decree more than six years after the entry of the decree; and; with regard to the statute of limitations, it is to be treated as analogous to an action upon a judgment rendered in a court not being a Court of Record. (17 Wendell, 330; 5 Hill., 408.) The Surrogate’s decree being final and for a money payment merely, would form the basis of a suit at law; (Post vs. Neafie, 3 Caines’ R., 22; 7 Wentworth, Pl., 95; Sadler vs. Robins, 1 Camp. P., 253; Dubois vs. Dubois, 6 Cowen, 494;) but even if not the subject of an action at law, it is a liability which, according to well established principles, should come under the application of the statute of limitations. The statute is not in terms applicable to proceedings in Surrogates’ Coiu’ts, bat there is no reason why an action barred by the statute in all other courts, should be sustained in the Surrogate’s Court. (MoCartee vs. Camel, 1 Barbour's Ch. R., 456.) This has been held in regard to suits by creditors, legatees, and distributees. (Ibid.; Souzer vs. De Meyer, 2 Paige, 574.) Since the statute of 21 Jac., 1. c. 16., was
But it is said that the liability of the executor in this case under the Surrogate’s decree, is in the nature of a trust, against which the statute cannot be pleaded. The doctrine that the statute of limitations does not run against a trust, applies however only to “ those technical and continuing trusts which are not at all cognizable at law, but fall within the proper, peculiar, and exclusive jurisdiction” of a Court of Equity. (Kane vs. Bloodgood, 7 J. C. R., 111; Stafford vs. Richardson, 15 Wendell, 303.) As to legacies not charged upon land, debts, and distributive shares of an estate, the statutes of this State give a concurrent remedy to legatees, creditors, and distributees in the Courts of Law and Equity, and in the Surogate’s Court (2 R. S., p. 176. § 2. 10. 19. 3d ed.) ; and the statute of limitations being a bar at law, it is equally so in the Surrogate’s Court, or in a Court of Equity (2 R. S.,
This disposition of the fund, and the bond executed in conformity to it, give rise to a more important question. In the recital of the bond, the payment of half the fund is described as made “to Maria A. Faff, executrix of Joseph Delacroix, deceased,” for the purpose of being held on
There is another view of this case which, independently of any of the grounds discussed, appears to me entirely conclusive in itself against the present application. Both parties here stand in a fiduciary capacity in relation to the estate. This is a continuing trust. . (Flinn vs. Chase, 4 Denio's R., 85.) The formal discharge contained in a decree on final accounting operates only as to the accounts of the parties up to that period. The trust is an enduring one; other assets may be realized, new liabilities incurred, involving a continuance of duty and responsibility. A decree on final accounting does not destroy the relation of an executor, but only discharges him from liability for the past; and where, as in this case, a creditor does not take his share of the fund, but leaves it in the hands of the executor, the latter still continues to retain the fund in the capacity of an executor. The executor having by the decree been found to be in possession of assets, the character of the original claim is so far changed, as to make him personally liable for the amount out of his own property, but his character of executor is not lost. Even after a final accounting and a distribution, an executor continues to be a trustee. (White vs. Swain, 3 Pickering's R., 865.) Mr. Kinney, therefore, still holds the fund as executor, and Mrs. Paff was still executrix of Joseph Delacroix, deceased, and indeed so styled herself, when she received the assignment of a decree against the estate of her testator. Now it cannot be that an executor shall in any way procure by purchase, or by voluntary transfer, without consideration, a claim against the estate he represents, for his own individual benefit. All such transactions must enure to the benefit of his cestui que trust. This rule of conscience established in equity, and applied to all trust relations with rigid severity, is in the present instance borne out by the letter of the law. The statute is explicit, that executors shall not make profit out of the estate.