In re Barnes' Estate

and that the petitioner was then an infant, but that he arrived at the age of 21 years in the year 1889. Thus, it is conceded, that this proceeding was not commenced until 17 years after the issuance of letters and 9 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. Proc. §§ 414, 3333, 3334; Church v. Olendorf, 49 Hun, 439 , 3 N. Y. Supp. 557 . 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 (In re Rogers’ Estate, 153 N. Y. 322 , 47 N. E. 589 ); 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. (Sur.) 5; Smith v. Remington, 42 Barb. 75 ; House v. Agate, 3 Redf. 307; Clark v. Ford, 1 Abb. Dec. 359; Butler v. Johnson, 111 N. Y. 204 , 18 N. E. 643 ; In re Nicholls, 8 N. Y. Supp. 7 ; In re Perry’s Estate, 15 N. Y. Supp. 535 ; In re Miller’s Estate, 15 Misc. Rep. 556 , 37 N. Y. Supp. 1129 ; Clock v. Chadeagne, 10 Hun, 97 ; In re Van Dyke, 44 Hun, 394 ; In re Rogers’ Estate, supra. In the last-mentioned case it is stated in the opinion 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. Proc. §§ 382, 414); but it 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. Proc. § 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.