De Witt Peltz v. Schultes — 46 N.Y. St. Rep. 216

Majority

p. 216

John De Witt Peltz et al., Adm’rs, Resp’ts, v. John A. Schultes et al., Ex’rs, App’lts.

(Supreme Court, General Term, Third Department,

Filed July 2, 1892.)

Headnote

Executors and administrators—Accounting—Limitation.

One W. died in 1871, leaving a will, by which he gave all his property, except certain specific legacies, to his wife, who was named as executrix, for life, and directed its distribution among the legatees one year after her death. The wife died in 1889, and defendants are her executors, and plaintiffs-were appointed administrators of W.’s estate. JHeld, that defendants could be required to account for any property which came into their hands which belonged to W.’s estate; that the proceeding was not barred by the statute of limitations, as no right to a distribution or a final accounting could arise until the death of the wife.

Appeal from order of the surrogate of Albany county requiring defendants to account as executors of a deceased executrix.

John D. White (Eugene Burlingame, of counsel), for app’lts; William McElroy (William L. Learned, oí counsel), for resp’ts.

This is an appeal by the defendants from an. order of the surrogate of Albany county requiring them as executors of Mary Watson, deceased, to account for the property that came into her hands as executrix of Isaac H Watson, deceased. Sometime in the year 1871 Isaac H. Watson, then a resident of Albany county, died, leaving a last will and testament, which was admitted to probate by the surrogate of Albany county on the 6th day of June, 1871. On the same day letters testamentary were issued to John J. Canaday as executor and Mary Watson as executrix, they being so designated in the will; both duly qualified, and thereafter filed an inventory of the estate.

On or about October 26, 1875, the said John J. Canaday died intestata

On or about September 25, 1889, Mary Watson died, leaving a last will and testament, wherein the defendants were named as executors, and which will was admitted to probate by the surrogate of Albany county January 9, 1890, and on the same day the defendants duly qualified as executors, and thereafter, and on March 10, 1890, duly filed their inventory of the personal effects of the estate of Mary Watson.

No judicial settlement of the estate of Isaac H. Watson has ever been had by the executors thereof or either of them.

With the exception of some specific legacies to other parties, Isaac H. Watson bequeathed all his property both real and personal to his wife, Mary Watson, during her life; he further provided for the distribution of his property among various legatees one year after the death of his wife.

On the 24th day of November, 1891, letters of administration with the will annexed of the estate of said Isaac H. Watson were issued by the surrogate of Albany county to the respondents, who duly qualified as such administrators.

None of the beneficiaries under thé will of Isaac H. Watson ever attempted to bring the executors of his will, or either of them, to an account,

p. 217

The respondents as such administrators of the will of Isaac H. Watson applied to the surrogate of Albany county to have the defendants as executors of the will of Mary Watson render an account of any property that had come into their hands as such executors that, belonged, to the estate of Isaac H. Watson.

The defendants resisted such application,' alleging that more than seven years had elapsed prior to the death of Mary Watson and after the issuing to her of letters testamentary ; also that none of the beneficiaries under the will, although not incapacitated so to do, had taken any steps to compel an accounting within six years from the time sucji right accrued.

I think the decree of the surrogate should be affirmed. The right to compel the executor of an executor to account upon the application of the successor of the original executor is provided for by § 2606 of the Code of Civil Procedure.

The right to demand an accounting of the defendants did not accrue until their appointment The property that is being sought, and for which they are asked to account, was not to be distributed until the death of their testator, Mary Watson; until that time the legatees had no right to demand the same, and the statute would not run against them.

They could not sue for their legacies and could not have an accounting, Matter of Hodgman, 31 St. Rep., 479 . The right to a distribution and to a final accounting of the estate of Isaac H. Watson could not arise until the death of Mary Watson ; the defendants have no right to the remainder of that estate in the possession of their testatrix at the time of her death. If instead of dying September 15, 1889, Mary Watson had so conducted herself that the letters granted to her had been revoked on that day, she could have been made to account for the property in her hands as executrix and turn the same over to her successor. The defendants occupy her position and must account in the same manner. Matter of Clark, 119 N. Y., 427 ; 29 St. Rep., 682 ; Matter of Wiley, 119 N. Y., 642 ; 29 St. Rep., 787 .

The decree of the surrogate should be affirmed, with costs and printing disbursements to be paid by the defendants personally.

Mayham, P. J., and Putnam, J., concur.