In re Estate of Jordan — 50 A.D. 244

Majority

p. 244

In the Matter of the Estate of Louis J. Jordan, Deceased. Estella J. Jordan Johnstone, Executrix, etc., of Louis J. Jordan, Deceased, Appellant; The City .of New York, Petitioner, Respondent.

Headnote

Statute of Limitations — the defense thereof in the Surrogate’s Oourt — it is properly presented by an answer, and not by a motion to dismiss the citation.

An executrix, who desires to interpose the Statute of Limitations as a bar to a proceeding in the Surrogate’s Court to compel her to account, should raise that question by answer, and not by a motion to dismiss the citation.

Appeal by Estella J. Jordan Johnstone, executrix, etc., of Louis J. Jordan, deceased, from an order of the Surrogate’s Court of New York county, entered in said Surrogate’s Court on the 20th day of October, 1899, denying her motion to dismiss a citation requiring her to account.

Jurden M. Seeley, for the appellant.

Theodore Connoly, for the respondent.

Upon the return day of the citation requiring the executrix of the last will and testament of Louis J. Jordan to account, she moved in open court upon the petition to dismiss the citation for the reason that it appeared on the face of the petition that more than six years had elapsed since the right of the petitioner to demand

p. 245

an accounting had accrued, and that, therefore, the right to demand an accounting was barred by the Statute of Limitations. The court overruled the motion and made the order requiring the executrix to account, from which this appeal is taken. She seeks in this court to have a review of the determination below, urging that the six-year Statute of Limitations was a bar, and the respondent contending that the twenty-year statute is applicable.

We do not think that the practice adopted by the executrix was the proper one for presenting the question either in the Surrogate’s Court or in this court. Instead of making a motion to dismiss the petition and citation, she should have answered, pleading the statute which she claimed was applicable. The Statute of Limitations is always a matter of defense and must be presented by answer. Here, although a mere reading of the dates as to the time when the testator died, when letters were issued and when the application for the citation was made, might support an argument based on the statute, such dates would not be conclusive. The petitioner as against the array of dates might be able to show facts which prevented the running of the statute. ' In other words, where from the number of years that has elapsed the statute apparently has run, it is always competent to show facts or circumstances which would have prevented the running of the statute and destroyed its effect as a bar. We do not think, therefore, that we should discuss or determine whether the six-year or other Statute of Limitations applies, leaving that in the first instance for the surrogate to determine should the question be properly raised by answer.

The order appealed from should be affirmed, with costs, and the proceeding remitted to the Surrogate’s Court with leave to the executrix to answer.

Present—Van Brunt, P. J., Patterson, O’Brien, Ingraham and McLaughlin, JJ.

Order affirmed, with costs, and proceeding remitted to Surrogate’s Court with leave to the executrix to answer.