In re the Estate of H. V. D. Van Epps — 64 How. Pr. 464

Majority

p. 464

SURROGATE’S COURT.

In the Matter of the estate of H. V. D. Van Epps, deceased.

Headnote

Statute of limitation—Petition of next of Mn to compel administrator to account—What lapse of time ha/rs the application.

The'next of kin of a deceased intestate must institute proceedings within the time in which actions of a similar character are required to be commenced, to compel the administrator to account and to distribute the estate.

One Van Epps died intestate in 1858, and in that year H. Van Epps was appointed administrator. In 1882, A. Van Epps, one of the next of kin applied by petition to the surrogate, to compel the administrator to account and for his share of the estate:

Meld, .that lapse of time barred the application.

Albany County, December, 1882.

Harperd Y. D. Yan Epps died March 20, 1858, intestate; letters of administration issued to John C. Yan Epps August 6, 1858. On the 10th day of ¡November, 1882, Abram W. Yan Epps, a brother of the deceased, presented a petition to the surrogate, praying that the administrator be required to account, and that such further proceedings be had as are necessary to enforce the payment to the petitioner of his share of the estate of the deceased. A citation was issued. On the return day the administrator appeared and plead the statute of limitations.

Edward J. Meegan, for administrator.

I. The surrogate should dismiss the proceeding as more than six years have elapsed since the expiration of the eighteen months subsequent to issuing letters of administration, the time allowed by law to executors and administrators to settle estates. The six year clause in the statute of limitations applies to this case (Cole agt. Terppenning, 25 Hun, 482 ; Clark agt. Ford, 1 Abb. Ct. of App., 359; 3 Keyes, 370; 34 How.

p. 465

Pr., 478 ; House agt. Agate, 3 Redf. R., 307; Clock agt. Chadeaque, 10 Hun, 97 ; Smith agt. Remington, 42 Barb., 75 ).

William E. Edmonds, for petitioner.

The petitioner comes too late-. I must apply the statute of limitations. In addition to the-cases cited by counsel, I know of McCabe agt. McCabe decided by the general term of the supreme court of the third-department, covering the points presented herein by the petition. The authorities are uniform in holding the doctrine-contended for by the counsel for administrator. Let an order be entered that the relief asked for in the petition be denied.