In re Jordan's Estate — 63 N.Y.S. 911

Majority

p. 911

In re JORDAN’S ESTATE.

(Supreme Court, Appellate Division, First Department.

April 12, 1900.)

Headnote

Executors — Accounting—Limitations—Defense—Motion.

The defense that the petitioner’s right to demand an accounting is barred by the statute of limitations cannot be raised on a motion to dismiss the citation for the executrix of the estate to account; hence an order overruling such a motion was proper.

Appeal from order of surrogate, New York county.

Petition by the city of New York for a citation requiring Estella J. Jordan Johnstone, executrix of the estate of Louis J. Jordan, deceased, to render an account. From an order overruling a motion by the executrix to dismiss the citation, she appeals.

Affirmed.

Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERSON, O’BRIEN, and INGRAHAM, JJ.

Jurden E. Seeley, for appellant.

Theodore Connoly, for respondent.

Upon the return day of the citation requiring the executrix of the last will and testament of Louis J. Jordan to account, she moved in open court, upon the petition, to dismiss the citation for the reason that it appeared on the face of the petition that more than six years had elapsed since the right of the petitioner to demand an accounting had accrued, and therefore the right to demand an accounting was barred by the statute of limitations. The court overruled the motion, and made the order requiring the executrix to account from which this appeal is taken. She seeks in this court to have a review of the determination below, urging that the 6-year statute of limitations was a bar, and the respondent” contending that the 20-year statute is applicable.

‘ We do not think that the practice adopted by the executrix was the proper one for presenting the question either in the surrogate’s court or in this court. Instead of making a motion to dismiss the petition and citation, she should have answered, pleading the statute which she claimed was applicable. The. statute of limitations is always a matter of defense, and must be presented by answer. Here, although a mere reading of the dates as to the time when the testator died, when letters were issued, and when the application for the citation was made might support an argument based on the statute, such dates would not be conclusive. The petitioner, as against the array of dates, might be able to show facts which prevented the running of the statute. In other words, where, from the number of years that has elapsed, the statute apparently has run, it is always competent to show facts or circumstances which would have prevented the running of the statute, and destroyed its effect as a bar. We do not think, therefore, that we should discuss or determine whether the 6-year or other statute of limitations applies, leaving that in the first instance for the surrogate to determine should the question be properly raised by answer.

The order appealed from should be affirmed, with costs, and the proceeding remitted to the surrogate’s court, with leave to the executrix to answer.