Rafferty v. Mitchell

Plaintiff brought an action against the National Surety Company, as surety on the bond of an executor, for a distributive share of the estate which he administered. She appeals from the judgment dismissing her action after defendant’s demurrer was sustained without leave to amend.

The complaint alleges that the surety company executed the bond of Joseph A. Monahan, as executor of the Estate of Patrick J. Hamilton, deceased. It appears that Hamilton died in 1916, and that a few days thereafter Monahan qualified and filed his bond in the usual form prescribed for such office. By the testator’s will a legacy of $4,000 was left to St. Patrick’s Home for Aged Men and Women,

The complaint further alleges that the bequest was never paid, and that the executor could not be found to make demand upon. The executor, however, has never been discharged.

This action was commenced more than 13 years after the decree of partial distribution was made and entered, and more than 9 years after the decree of final distribution. Defendant, among other grounds,- contends that appellant’s action is barred by the statute of limitations, and the correctness of the ruling of the trial court upon that one ground is the only proposition presented by the appeal. In the presentation of that point respondent has assumed that plaintiff and her constituents did have a right to the $4,000 legacy named in the will at the time of entry of the decree of partial distribution in 1918.

Appellant admits that the action would be barred if only the length of time elapsing between the decree of partial distribution and the commencement of the action is to be considered, but contends that the executor is an express trustee, and that the statute does not run against his obligation to pay until he has repudiated the obligation and brought home notice of his repudiation to the distributee.

By section 1021 of the Probate Code (formerly section 1666 of the Code of Civil Procedure), relative to the decree of distribution, it is provided: “In its decree, the court must

When a cause of action accrues, an action thereon can be commenced only within the period prescribed by the statute of limitations. It is the accrual of the cause of action which starts the running of the statute and where it arises in favor of a cestui que trust, the trustee may generally plead it in bar either to the action at law or in any proceeding for relief in equity. The general rule is that the statute does not begin to run against a trustee until he repudiates his trust. But by the repudiation of the trust a cause of action arises, and if it comes into being for any other reason the statute also commences to run. It is only where the beneficiary has no right of action that the statute does not run.

In 37 Corpus Juris, 906, the rule is thus stated: “Moreover it is not every case off direct and express trust arising between trustee and cestui que trust that is exempt from the operation of the statute. The only class of trusts not affected by the statute are, in the language of Chancellor

The quoted language of Chancellor Kent is from the case of Kane v. Bloodgood, 7 Johns. Ch. (N. Y.) 90 [ 11 Am. Dec. 417 ], where the application of the statute of limitations to obligations of fiduciaries is discussed at length. He there held, quoting an early- English case, “that the trusts which are not within the statute, are those which are creatures of the court of equity and not within the cognizance of a court of law; and that as to those other trusts which are the ground of an action at law, the statute is, and in reason ought to be as much a bar in the one court as in the other”. In the case of Love v. Watkins, 40 Cal. 547 [ 6 Am. Rep. 624 ], Chancellor Kent’s language is quoted and followed, the court saying that his conclusions are. founded on both reason and authority.

It is of interest in applying these rules to the case at bar, to -find that the English ease which was followed by Chancellor Kent and quoted from in Love v. Watkins, supra, was an action for an account of the profits of an estate received while the plaintiff was an infant, and the bill was not filed until six years after he became of age. The court there said, “that where one receives the profits of an infant’s estate, and six years after his coming of age he brings a bill for an account, the statute of limitations was a bar to such suit, as it would be to an action of account at common law; for this receipt of the profits of an infant’s estate was not such a trust as being a creature of a court of equity the statute shall be no bar to, for he might have had his action of account against him at law, and therefore no neees

There seems to be no case in California where the question has been directly passed upon by an appellate court. Appellant, however, relies on two cases which it is contended are authority for the position taken. But each of them may be clearly distinguished from the case under consideration.

The case of In re Clary, 112 Cal. 292 [ 44 Pac. 569 ], was one brought by an heir against an administrator. Plaintiff was a minor when the decree of distribution was made in her favor and did not bring her action for more than eight years after she reached her majority. While a recovery was allowed, the court pointed out that “the statute of limitations, even if available, was not pleaded”. The court did not, therefore, pass upon the application of the statute.

In the ease of Elizalde v. Murphy, 163 Cal. 681 [ 126 Pac. 978 ], an administratrix who was also an heir brought an action against the personal representative of a previous administrator and the sureties upon his bond for an accounting. No decree of distribution had ever been made, and the court in upholding her right to maintain the action as against the plea of the statute of limitations said: “The discovery by the present administratrix, then but an heir, of such commingling could not, we say, have any bearing upon this litigation for the reason that if she knew of such conversion she could not have instituted against Graves then administrator an action therefor. Her sole right under the circumstances would have been to call the trustee to an account, as here she has done. After the judgment in accounting in her favor then for the first time arises the right to take appropriate proceedings against the adminis

The judgment is affirmed.

Conrey, P. J., and Houser, J., concurred.