42 Barb. 75 | N.Y. Sup. Ct. | 1864
By the Court,
The principal question here is, whether the statute of limitations was a bar to the proceedings before the surrogate, to compel the executors to account, and pay the legacy to the respondent. It appears to be well settled upon authority, that the statute of limitations may be interposed in a surrogate’s court as well as in any other. And that in a case where courts of law have a concurrent jurisdiction with the surrogate and the court of chancery, the six years’ limitation would constitute a bar to the proceeding in a surrogate’s court. (Kane v. Bloodgood, 7 John. Ch. 90, 114. McCartee v. Camel, 1 Barb. Ch. 455. Partridge v. Mitchell, 3 Edw. 180. Sherven v. Vanderhorst, 1 Russ. & M. 347.) In McCartee v. Camel, it was held distinctly, that suits by creditors, legatees, or distributees, before a surrogate, to obtain pay
In McCartee v. Camel, no answer or objection whatever was interposed, at any stage of the proceedings, to that part of the petition which prayed for a decree for the paymént of the distributive share. The objection that the statute of limitations had run against the claim was first taken, so far as appears upon the argument of the appeal, and yet it was held that the claim was barred.
And in Partridge v. Mitchell, (supra,) it was held that the objection of the statute as a bar, might be taken before the master upon a reference to him to take the account, by any party interested.
The policy of limiting rights of action to six years, is founded upon the difficulty of obtaining proof to substan
Welles, J. 0. Smith and Johnson, Justices.]