In re the Estate of Jacobs

Appellate Division of the Supreme Court of New York

In re the Estate of Jacobs

257 A.D. 28, 12 N.Y.S.2d 605, 1939 N.Y. App. Div. LEXIS 7658

Appellate Division of the Supreme Court of the State of New York·Decided May 3, 1939·Published·Cited by 9 cases

Opinion

Per Curiam.

The ten-year Statute of Limitations applies to the right of a distributee to maintain a proceeding in the Surrogate’s Court against an administrator for an accounting. (Civ. Prac. Act, § 53; Matter of Ashheim, 185 N. Y. 609, affg. 111 App. Div. 176.) The position of an administrator is the same as that of an executor in this respect. The statutory period, however, does not begin to run until the administrator has openly repudiated his obligation to administer the estate. (Matter of Meyer, 98 App. Div. 7; affd., 181 N. Y. 553; Matter of Menahan, 224 App. Div. 139.) We find no such repudiation in this proceeding. While it is true that the petition for letters of administration signed by both the administratrix-respondent and petitioner’s intestate contained an allegation that certain personal property was held jointly by the intestate and Margaret K. Jacobs, his wife, who is the administratrix-respondent in this proceeding, we do not consider this allegation as sufficiently definite to amount to a repudiation of her trust as administratrix. The statement is merely incidental and may have represented the belief of all of the petitioners at the time the petition was signed but cannot be taken, in our opinion, as amounting to more than the general opinion of the family before the administration with its legal obligations was assumed. As this was not a repudiation of the trust obligation, neither does it amount to an estoppel against the present petitioner.

The order should be reversed on the law, with ten dollars costs and disbursements, payable out of the estate, and matter remitted to the Surrogate’s Court for further proceedings to require the administratrix to account.

All concur. Present — Sears, P. J., Crosby, Lewis, Cunningham:, and Dowling, JJ.

Order reversed on the law, with ten dollars costs and disbursements, payable out of the estate, and matter remitted to the Surrogate’s Court for further proceedings to require the administratrix to account.

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Per Curiam.

The ten-year Statute of Limitations applies to the right of a distributee to maintain a proceeding in the Surrogate’s Court against an administrator for an accounting. (Civ. Prac. Act, § 53; Matter of Ashheim, 185 N. Y. 609, affg. 111 App. Div. 176.) The position of an administrator is the same as that of an executor in this respect. The statutory period, however, does not begin to run until the administrator has openly repudiated his obligation to administer the estate. (Matter of Meyer, 98 App. Div. 7; affd., 181 N. Y. 553; Matter of Menahan, 224 App. Div. 139.) We find no such repudiation in this proceeding. While it is true that the petition for letters of administration signed by both the administratrix-respondent and petitioner’s intestate contained an allegation that certain personal property was held jointly by the intestate and Margaret K. Jacobs, his wife, who is the administratrix-respondent in this proceeding, we do not consider this allegation as sufficiently definite to amount to a repudiation of her trust as administratrix. The statement is merely incidental and may have represented the belief of all of the petitioners at the time the petition was signed but cannot be taken, in our opinion, as amounting to more than the general opinion of the family before the administration with its legal obligations was assumed. As this was not a repudiation of the trust obligation, neither does it amount to an estoppel against the present petitioner.

The order should be reversed on the law, with ten dollars costs and disbursements, payable out of the estate, and matter remitted to the Surrogate’s Court for further proceedings to require the administratrix to account.

All concur. Present — Sears, P. J., Crosby, Lewis, Cunningham:, and Dowling, JJ.

Order reversed on the law, with ten dollars costs and disbursements, payable out of the estate, and matter remitted to the Surrogate’s Court for further proceedings to require the administratrix to account.

In re the Estate of Jacobs, 257 A.D. 28, 12 N.Y.S.2d 605, 1939 N.Y. App. Div. LEXIS 7658 (N.Y. Ct. App. 1939).

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Opinion

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