The Surrogate.
The first and. second exceptions, so far as they raise the question of statutory bar, should be overruled, for the more recent authorities, in this State, at least, hold that the statute of limitations is a complete bar, which the executor has no right to waive; that it is his duty to interpose the statute as a defense; and that the payment of a barred claim cannot be credited to him, on his accounting (Bloodgood v. Bruen, 8 N. Y., 362 ; Bucklin v. Chapin, 1 Lans., 443).
In McLaren v. McMartin (36 N. Y., 88), it was held, that the mere fact of a partial payment by an executor or administrator, on a demand already barred at the death of the testator or intestate, is not sufficient to revive the demand against his estate.
There seems to be no. doubt as to the duty of a representative of an estate to interpose the defense of the statute of limitations against any claim barred thereby; and the next question for consideration is, whether that [74]*74statute can be invoked in behalf of persons interested in the estate, against a claim thus barred, in favor of an exécutor or administrator.
There seems to be no good reason for a different rule in respect to such a claim. Indeed, it would seem to require the enforcement of the immunity of the estate more rigidly than in the case of an ordinary claim, because in the latter the representative of the estate has no personal interest in neglecting its protection, while in the former, his interest is adverse to ány scrutiny of the claim, or defense thereto.
In Warren v. Paff (4 Brad., 260), the learned Surrogate held that the statute of limitations might be interposed by the executor, or by any party interested in the fund realized on the sale of real estate by the executor, notwithstanding a decree on final accounting wherein the claims of creditors had been liquidated.
In Rogers v. Rogers (3 Wend., 503), it was held that a debt barred by the statute of limitations in the lifetime of the testator, was presumed to have been paid, and was, therefore, not a'legal demand or just debt; and that an executor had no right to retain for such a demand, due to him personally, notwithstanding the will provided for the payment of all just debts. There is no such thing as the presentation and admission, approval or dispute of a claim against an estate, made by its representative, and hence there can be no revival of such a barred claim.
In Re Rogers (1 Redf., 231), it was held that the statute of limitations ran against an administrator’s or executor’s claim, the same as any other claim, and as the statute forbids the representative of an estate to retain [75]*75any part of the property of a decedent in satisfaction of his own debt or claim, until it shall have been proved to and allowed by the Surrogate (3 R. S., 96, § 43 [6 ed.]), the proceeding under chapter 460, section 37, Laws 1837, to establish the same, or its establishment on the final accounting, would seem to be analogous to the commencement of an action to enforce the same, and no good reason can be suggested why any defense which might be interposed in such an action should be denied in such a proceeding.
This disposes of the first and second exceptions filed by the executor, and brings me to the consideration of the. exception, filed by the contestant, to the allowance of $151.20, to the executor, for services rendered to the testatrix.
I fully concur with the conclusion of the referee, that the facts proved warrant the finding of an implied contract on the part of the decedent to pay for the services rendered by Mr. Noble what they were reasonably worth ; that such promise was not to be performed, or the services paid for, by the will of decedent, and that the trifling articles of gift were not on account of, or in part payment for such services, and that, therefore, the claim for the whole period was not taken out of the statute of limitations; that the executor is only entitled to payment for so much of the services as became due and payable within six years of the decedent’s death-; and that the claim for the other services rendered theretofore, is barred by the statute of limitations; and, as it appears that the services began in July, immediately after the death of testatrix’s husband, that the law implies an employment from year to year (Davis v. Gorton, 16 N. [76]*76Y., 255 ; Smith v. Velie, 60 Id., 110); that the executor is entitled to receive pay for six years and five months, to wit: for the year commencitig July, 1871, the wages for which would fall due July, 1872, and could not have been outlawed until 1878, if the decedent had survived to that time.
But an examination of the testimony fails to show any legal basis for the finding of the referee, as to the value of the yearly services rendered. And if I understand his “opinion,” he bases his finding upon the assumption that there is proof that the services were worth, for the whole period, the sum charged, and yet the executor was not permitted to give evidence of such aggregate value personally, and the only evidence of value is that it is customary to charge five per cent, on such collections—though the same witness expressed the opinion that under the circumstances of this case, it was worth a larger percentage, without stating the amount-. Hence, I am of the opinion, that on the testimony the referee could find that he was entitled to but five per cent, upon the amount collected within the period aforesaid, and interest on the amount, which became due at the end of each year, when it was payable, for it is quite clear that the referee must find the value according to the testimony, and not according to his individual estimate of such value; and unless the executor shall be content with that sum, he may, at his option, take a new reference for the purpose of proving the real value.
As to the fourth exception by the executor, which relates to the rulings of the referee excluding his testimony with reference to transactions and communications with decedent, and what he did, as tending to show an implied [77]*77agreement on the part of the decedent to pay for said services, I am of the opinion that it should be overruled, and that the ruling of the'referee was substantially conformable to section 829 of the Code.
In Brague v. Lord (2 Abb. N. C., 1), it was held that the plaintiff could not give the declarations of a deceased person and a third person, made in the plaintiff’s presence, in evidence, when the decedent made a remark’ which alluded to the plaintiff, and at the same time turned his head toward him ; the action being by the plaintiff against the representative of a deceased person, who, it was claimed, had employed the plaintiff as his attorney in certain matters.
In Freeman v. Lawrence (43 N. Y. Super. Ct., 288), the action was brought to recover for legal services rendered by the plaintiff to the defendant’s testator. The plaintiff was called on his own behalf, and asked if, about, the time he was introduced to the decedent, he commenced. any action for him ; and against the defendant’s objection, he answered that he did. This was held error. See, also, Somerville v. Crook (9 Hun, 664).
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The Surrogate.
The first and. second exceptions, so far as they raise the question of statutory bar, should be overruled, for the more recent authorities, in this State, at least, hold that the statute of limitations is a complete bar, which the executor has no right to waive; that it is his duty to interpose the statute as a defense; and that the payment of a barred claim cannot be credited to him, on his accounting (Bloodgood v. Bruen, 8 N. Y., 362 ; Bucklin v. Chapin, 1 Lans., 443).
In McLaren v. McMartin (36 N. Y., 88), it was held, that the mere fact of a partial payment by an executor or administrator, on a demand already barred at the death of the testator or intestate, is not sufficient to revive the demand against his estate.
There seems to be no. doubt as to the duty of a representative of an estate to interpose the defense of the statute of limitations against any claim barred thereby; and the next question for consideration is, whether that [74]*74statute can be invoked in behalf of persons interested in the estate, against a claim thus barred, in favor of an exécutor or administrator.
There seems to be no good reason for a different rule in respect to such a claim. Indeed, it would seem to require the enforcement of the immunity of the estate more rigidly than in the case of an ordinary claim, because in the latter the representative of the estate has no personal interest in neglecting its protection, while in the former, his interest is adverse to ány scrutiny of the claim, or defense thereto.
In Warren v. Paff (4 Brad., 260), the learned Surrogate held that the statute of limitations might be interposed by the executor, or by any party interested in the fund realized on the sale of real estate by the executor, notwithstanding a decree on final accounting wherein the claims of creditors had been liquidated.
In Rogers v. Rogers (3 Wend., 503), it was held that a debt barred by the statute of limitations in the lifetime of the testator, was presumed to have been paid, and was, therefore, not a'legal demand or just debt; and that an executor had no right to retain for such a demand, due to him personally, notwithstanding the will provided for the payment of all just debts. There is no such thing as the presentation and admission, approval or dispute of a claim against an estate, made by its representative, and hence there can be no revival of such a barred claim.
In Re Rogers (1 Redf., 231), it was held that the statute of limitations ran against an administrator’s or executor’s claim, the same as any other claim, and as the statute forbids the representative of an estate to retain [75]*75any part of the property of a decedent in satisfaction of his own debt or claim, until it shall have been proved to and allowed by the Surrogate (3 R. S., 96, § 43 [6 ed.]), the proceeding under chapter 460, section 37, Laws 1837, to establish the same, or its establishment on the final accounting, would seem to be analogous to the commencement of an action to enforce the same, and no good reason can be suggested why any defense which might be interposed in such an action should be denied in such a proceeding.
This disposes of the first and second exceptions filed by the executor, and brings me to the consideration of the. exception, filed by the contestant, to the allowance of $151.20, to the executor, for services rendered to the testatrix.
I fully concur with the conclusion of the referee, that the facts proved warrant the finding of an implied contract on the part of the decedent to pay for the services rendered by Mr. Noble what they were reasonably worth ; that such promise was not to be performed, or the services paid for, by the will of decedent, and that the trifling articles of gift were not on account of, or in part payment for such services, and that, therefore, the claim for the whole period was not taken out of the statute of limitations; that the executor is only entitled to payment for so much of the services as became due and payable within six years of the decedent’s death-; and that the claim for the other services rendered theretofore, is barred by the statute of limitations; and, as it appears that the services began in July, immediately after the death of testatrix’s husband, that the law implies an employment from year to year (Davis v. Gorton, 16 N. [76]*76Y., 255 ; Smith v. Velie, 60 Id., 110); that the executor is entitled to receive pay for six years and five months, to wit: for the year commencitig July, 1871, the wages for which would fall due July, 1872, and could not have been outlawed until 1878, if the decedent had survived to that time.
But an examination of the testimony fails to show any legal basis for the finding of the referee, as to the value of the yearly services rendered. And if I understand his “opinion,” he bases his finding upon the assumption that there is proof that the services were worth, for the whole period, the sum charged, and yet the executor was not permitted to give evidence of such aggregate value personally, and the only evidence of value is that it is customary to charge five per cent, on such collections—though the same witness expressed the opinion that under the circumstances of this case, it was worth a larger percentage, without stating the amount-. Hence, I am of the opinion, that on the testimony the referee could find that he was entitled to but five per cent, upon the amount collected within the period aforesaid, and interest on the amount, which became due at the end of each year, when it was payable, for it is quite clear that the referee must find the value according to the testimony, and not according to his individual estimate of such value; and unless the executor shall be content with that sum, he may, at his option, take a new reference for the purpose of proving the real value.
As to the fourth exception by the executor, which relates to the rulings of the referee excluding his testimony with reference to transactions and communications with decedent, and what he did, as tending to show an implied [77]*77agreement on the part of the decedent to pay for said services, I am of the opinion that it should be overruled, and that the ruling of the'referee was substantially conformable to section 829 of the Code.
In Brague v. Lord (2 Abb. N. C., 1), it was held that the plaintiff could not give the declarations of a deceased person and a third person, made in the plaintiff’s presence, in evidence, when the decedent made a remark’ which alluded to the plaintiff, and at the same time turned his head toward him ; the action being by the plaintiff against the representative of a deceased person, who, it was claimed, had employed the plaintiff as his attorney in certain matters.
In Freeman v. Lawrence (43 N. Y. Super. Ct., 288), the action was brought to recover for legal services rendered by the plaintiff to the defendant’s testator. The plaintiff was called on his own behalf, and asked if, about, the time he was introduced to the decedent, he commenced. any action for him ; and against the defendant’s objection, he answered that he did. This was held error. See, also, Somerville v. Crook (9 Hun, 664).
Though these authorities do not with distinctness state the particular grounds upon which they were decided, yet it is presumed that the evidence was excluded in the cases, for the reason that whatever was done by the executor or the decedent, from which an obligation to pay could be presumed, was a transaction between him and the decedent, as really as if the parties had entered into a formal contract in writing therefor.
It is true that, on first thought, the question of what services were rendered, after the testimony warranted the inference that such an agreement existed, would [78]*78seem not to form an;*- part of the transaction itself as a contract; but upon more careful consideration, it is apparent that such testimony is quite as obnoxious to the prohibition of the statute as would be the testimony of the claimant to the particular terms of an express agreement, for it is the performance of the services for the decedent, with her knowledge, that constitutes the agreement, which the law implies. And if the decedent were alive she,might be able to show an agreement that such services were gratuitous or on account of an indebtedness, or that by reason of some special circumstances existing between the parties, they were less valuable, or that they had been paid for.
If I understand the purpose of the statute under consideration, it is to prevent the establishment of claims against estates by the testimony of those interested in such establishment, while the month of the alleged obligor is sealed in death and cannot controvert the claim, or the facts upon which it is sought to be established.
The same considerations justify the rejection of the claimant’s testimony as to the value of his services.
The executor’s account states an amount to be paid for a monument, pursuant to the directions of the will,— $700. If I understand the position of the executor, it is that that sum should be retained for that purpose, and that the court should so order, and that it has no power to interfere with his apparent discretion conferred by the will.
In the case of Emma J. Luckey (4 Redf., 95), I had occasion to consider a kindred question, and therein reached the conclusion that such a discretion must.be exercised within the limits of the law, and that the law [79]*79did not permit an unlimited or capricious exercise of discretion.
Ordinarily, the representative of an estate makes the expenditure on his official responsibility, and submits the result to the Surrogate on final accounting. But as no such expenditure has yet been made, nor any liability incurred, it is proper to consider at this time what would be a reasonable sum to be retained by the executor for the purpose named. Considering the small amount of the estate—it being less than $2,000—(for distribution), out of which must come the expenses of this accounting, commissions, and a reasonable sum for the monument, I am of the opinion that no greater sum than $250 should be allowed therefor, and that a larger sum would be an abuse of such discretion.
Referee’s report modified accordingly..