In re Meyer's Estate

It is averred in the petition, and admitted by the answer of the executor, that Carsten H. Meyer was duly appointed executor of the last will and testament of John D. Meyer, deceased, on the 28th day of February, 1890; that the will of the testator was admitted to probate on the 28th day of February, 1890, and letters testamentary were issued to the respondent, Meyer. The petition further avers that John D. Meyer, prior to his death, was engaged in active business in New York City, of which business the executor took possession, together with other personal property of the estate. This averment bf the petition is not denied by the answer. The proceeding was instituted on or about the 21st day of December, 1903, and the order from which this appeal is taken ivas made and entered on the 14th day of March, 1904. It therefore appears that 13 years arid upwards had elapsed between the time when letters testamentary were issued and the date of the application, and between that period and the entering of the order requiring the executor to account was 14 years and 14 days. The executor relies in the answer which he has made solely upon the statute of limitations to defeat this proceeding. Such was the position taken in the court below, and it is reasserted in this court. The petition instituting this application is meager in the extreme. It is not* accompanied by the will of the testator, nor are the particular interests of the petitioners in and to the property devised or bequeathed by the will set out. In this respect it is faulty to the last degree. It does appear, however, that the petitioners are children of the deceased testator, and this relation creates an interest in the estate by operation of law. By the provisions of section 2727 of the Code of Civil Procedure a person interested in the estate may maintain the proceeding for an accounting by an executor. It is disclosed upon the face of the petition that they are persons having an interest in this estate, and therefore have standing to maintain the proceeding. They are clearly entitled to the relief asked for, unless the claim is barred by the statute of limitations. It stands undisputed that the respondent qualified and entered upon the duties of his office as executor, and received and took possession of the property of the testator. By virtue of the relation thus created the executor became trustee of those persons entitled to take pursuant to the provisions of the will. Occupying such relation, the statute of limitations should not begin to run until by some act sufficient for the purpose he repudiated his liability as' trustee. Such is the express holding of this court in a proceeding in -many respects similar to the present. Matter of Jones, 51 App. Div. 420 , 64 N. Y. Supp. 667 . There is nothing in this very meager record to show that the trustee

“Upon a proceeding of this nature it is not proper to deny the relief upon the ground that the statute of limitations has run against the remedy, unless all the facts upon which the running of the statute of limitations might depend are clearly shown. A person obtaining possession of property as executor should pot be permitted to acquire title thereto by failure of those interested to require him to account, unless there is no avenue of escape from such an inequitable result. If there be any doubt about the facts, the better practice is to grant the order. The facts may be clearly presented on the account filed pursuant to the order or on the proceedings subsequently had thereon. This seems to have been the primary purpose of the enactment. * * * The application of the statute of limitations may then be determined more satisfactorily when it is sought to enforce some right based on the accounting.”

In Matter of Wagner, 119 N. Y. 28 , 23 N. E. 200 , the court, in discussing the power of the surrogate to order an accounting, held that the Code provisions did not deprive the surrogate of discretion in disposing of the matter, and that, where it appeared upon the face of the proceedings that there existed a bar to the accounting (in that case of a settlement out of court), the surrogate was authorized to deny the application. The effect of this decision would seem to be that the defense relied upon must be so stated that the court can see that the particular bar relied upon actually exists. When it does, a dismissal of the proceedings is justified. When it does not, then it is the duty of the surrogate to order the accounting. In the present case it does not so appear. On the contrary, all of the facts may exist, as set forth in the answer of ■the executor, and still the statute of limitations not'have run against the right of the petitioner to an account, or in favor of the executor exonerating him from liability; for, unless he has repudiated his trust relation, he will remain liable, and this is nowhere asserted in the answer, nor does it otherwise appear. This holding is not in conflict with the rule announced in Matter of Rogers, 153 N. Y. 352 , 47 N. E. 452 . Therein the question of the running of the statute of limitations, as applied to a trustee where the trust relation continued to exist and there had been no denial at any time of the right of the cestui que trust, was not involved, and was not considered, nor has such rule, so far as we are aware, ever been denied. None of the cases relied upon by the appellant in any wise conflict with this rule. It is not necessary that we examine them all, as they are clearly distinguishable. .We reach the conclusion, therefore, that the learned surrogate was correct in holding that a case was made requiring an accounting, and that the

The order should, therefore, be affirmed, with $10 costs and disbursements. ,

PATTERSON, O’BRIEN, and LAUGHLIN, JJ., concur. VAN BRUNT, P. J., dissents.