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In re Longbotham's Estate

57 N.Y.S. 118 Court N.Y. App. Div. Decision date 1899-03-24 English

Delivered by GOODRICH, P. J.

Contents

Majority

p. 118
(38 App. Div. 607.)
In re LONGBOTHAM’S ESTATE.
(Supreme Court, Appellate Division, Second Department.
March 24, 1899.)

Headnote

Limitations—Accounting by Administrator.
The 10-years statute of limitations applicable to suits in equity governs a proceeding to compel an accounting by an administrator, though he has not renounced his trust.
Appeal from surrogate’s court, Kings county.
Petition by James F. Longbotham to compel an accounting by Joseph 0. Longbotham, administrator of Sarah E. Longbotham, deceased. From an order dismissing the proceeding, petitioner appeals.
Affirmed.
Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ.
Daniel T. O’Brien, for appellant.
Robert H. Wilson, for respondent.

In Re Taylor’s Estate, 30 App. Div. 213 , 51 N. Y. Supp. 609 , we held, in an opinion written by the present writer, that where funds had 9come into the hands of an administratrix, for which she had never accounted, and she had not publicly and officially renounced her trust, the statute of limitations had not commenced to run in her favor. In our consideration of that case we overlooked In re Rogers’ Estate, 153 N. Y. 316 , 47 N.

p. 119
that a proceeding to compel an administrator to account is controlled by the 10-year statute of limitations applicable to suits in equity. The orderly administration of justice and obedience to authority compels us to say that our decision in Re Taylor’s Estate was erroneous, and our decision of the present appeal must follow the decision in Re Rogers’ Estate. Sarah E. Longbothám died in 1880, and letters of administration on her estate were granted to her husband in the same year, but he has never filed any account of his proceedings. The present proceeding was not instituted till November, 1898, 18 years after the appointment of the administrator. The surrogate, on the authority of the Rogers Case, held that the statute of limitations operated, and dismissed the proceedings.

The decree must be affirmed, with costs.

Order of the surrogate of the county of Kings affirmed, with §10 costs and disbursements. All concur.

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