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In re the Estate of Barnes

25 Misc. 279 Court N.Y. Sur. Ct. English

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p. 279
Matter of the Estate of Rosanna Barnes, Deceased.
(Surrogate’s Court, New York County,
November, 1898.)

Headnote

Surrogate’s court — Application by next of kin to compel an accounting — Statute of limitations.
An application, made in 1898, under section 2727 of the Code of Civil Procedure, by one of the next of kin of a decedent, who became of age in 1889, to compel an administratrix, who became such in 1881, to account for moneys which she received but which she now alleges that she has duly and properly expended, is a special proceeding, is analogous to an action at law to recover upon a demand that was due, and must be dismissed as barred by the six-year Statute of Limitations (Code Civ. Pro., §§ 382, 414), which is applicable to the matter.
p. 280
Application for compulsory accounting by a legatee who became of age in the year 1889.
Moran & Belfer, for petitioner.
A. H. Parkhurst, for respondent.

This is a proceeding instituted under section 2727 of the Code of Civil Procedure by the petitioner, claiming to be one of the next of kin of the decedent, against the administratrix of the latter’s estate to compel an accounting by her, and it is alleged in the petition that as such administratrix certain moneys and property came into her hands for which she has never accounted. The respondent has appeared and interposed an answer admitting that she received moneys of the estate and that she has not accounted, but averring that she has properly expended all such moneys, and in part in the support of the petitioner; and she then pleads the Statute of Limitations as a bar to the application. It appears that letters of administration were granted to the respondent on September 13,1881, and that the petitioner was then an infant, but that he arrived at the age of twenty-one years in the year 1889. Thus, it is conceded, that this proceeding was not commenced until seventeen years after the issuance of letters and nine years after the petitioner attained his majority. According to the definition of remedies by the Code of Civil Procedure this is a special proceeding, but the rule of limitation applicable thereto is the same as if it were a civil action. Code Civ. Pro., §§ 414, 3333, 3334; Church v. Olendorf, 49 Hun, 439 . It is well settled that as to legacies not charged upon land, distributive shares of an estate and debts owing by the decedent, the statutes of this State give a concurrent remedy to legatees, creditors and next of kin, in courts of law and equity and in the Surrogate’s Court, and as the Statute of Limitations is a bar at law it is also a bar in the Surrogate’s Court or in a court of equity (Matter of Rogers, 153 N. Y. 322 ); and it has accordingly been repeatedly held that where an action by a legatee, to recover his legacy or distributive share, is barred by the statute, his right to an accounting by the representative of the estate is also barred, as the remedies are concurrent, and where one must be denied the other must be denied. McCartee v. Camel, 1 Barb. Ch. 455 ; Paff v. Kinney, 1 Bradf. 5 ; Smith v. Remington, 42 Barb. 75 ; House v. Agate, 3 Redf. 307; Clark v. Ford, 1 Abb. Ct. App. Dec. 359 ;

p. 281
Butler v. Johnson, 111 N. Y. 204 ; Matter of Nicholls, 8 N. Y. Supp. 7 ; Matter of Perry, 15 id. 535; Matter of Miller, 15 Misc. Rep. 556 ; 37 N. Y Supp. 1129 ; Clock v. Chadeagne, 10 Hun, 97 ; Matter of Van Dyke, 44 id. 394; Matter of Rogers, supra. In the last-mentioned case it is stated, in the opinión, that if the petitioner had applied as next of kin for an accounting, her remedy would have been analogous to an action at law to recover on a demand that was due, and, hence, would have been governed by the six years’ Statute of Limitation (Code Civ. Pro., §§ 382-414), but it was held that as the proceeding was brought under section 2606, by an administratrix de bonis non, to compel an accounting of the respondent as executor of the will of the deceased administratrix of the estate, being in the nature of a bill of discovery, the ten years’ (Code Civ. Pro., § 388) and not the six years’ Statute of Limitations applied, and that as provision for such a proceeding was not made by law prior to September 1, 1880, when that section became operative, and the proceeding was instituted within ten years from that date, the right of the petitioner as administratrix de bonis non to demand such accounting was not barred. In that case it was shown that the respondent received as executor unadministered assets of the estate of which his testatrix was administratrix. My conclusion is that the petitioner’s right to demand an accounting from the respondent here was, at the time of commencing the proceeding, barred by the Statute of Limitations, and an order may be submitted dismissing the petition.

Petition dismissed.

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