In re the Estate of Pond

New York Surrogate's Court

In re the Estate of Pond

3 Mills Surr. 447, 40 Misc. 66, 81 N.Y.S. 249

DecidedFebruary 15, 1903

StatusPublished

This text of 3 Mills Surr. 447 (In re the Estate of Pond) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Estate of Pond, 3 Mills Surr. 447, 40 Misc. 66, 81 N.Y.S. 249 (N.Y. Super. Ct. 1903).

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Opinion

Willis, S.

This proceeding was commenced by a verified petition presented to this court by Maria W. Toumans, in behalf of Mary Ella Wendell, an infant of the age of fifteen years. The petition, among other things, states that the said Maria W. Toumans is a grandmother of the said infant, that the said infant resides with said Maria W. Toumans, and that the said infant is a granddaughter, legatee and heir-in-law of said Ransom L. Pond, deceased, and is interested in the estate of said decedent.

The executors have appeared herein, and filed a verified answer, by which none of the allegations contained in the petition are put in issue.. As their sole defense herein they allege: “ That the cause of action in this proceeding alleged in said petition, did not accrue within six years before the commencement of this proceeding, and that this proceeding is, therefore, barred by the six years’ Statute of Limitations, and cannot be maintained.”

The same rule of limitation applies to this proceeding as in an action. Church v. Olendorf, 19 N. Y. St. Repr. 700; Matter of Rogers, 153 N. Y. 316.

[448]*448The chapter of the Code relating to the subject is entitled “ Limitations of the time of enforcing a civil remedy,” and by section 414 it is expressly applied to a special proceeding. Therefore, while the provisions of section 382 of the Code of Civil Procedure require a proceeding of this nature to be commenced within six years from the time when the right to institute the same accrues, yet in this proceeding the facts stated in the petition bring the case within the provisions of section 396 of the Code of Civil Procedure, which provides that: “ If a person, entitled to maintain an action specified in this title * * * is, at the time when the cause of action accrues, within the age of twenty-one years * * * The time of such a disability is not a part of the time limited in this title for commencing the action.” The person in whose behalf the petition is presented herein being within the express exception of the statute by reason of her infancy, it follows that the Statute of Limitations has never commenced to run as against this infant, and affords no answer, whatever, in this proceeding. Matter of Rogers, 153 N. Y. 321.

Mo reason appearing why these executors should not render an account of their proceedings, an order may be entered directing said executors to file their account in this court.

Decreed accordingly.

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Willis, S.

This proceeding was commenced by a verified petition presented to this court by Maria W. Toumans, in behalf of Mary Ella Wendell, an infant of the age of fifteen years. The petition, among other things, states that the said Maria W. Toumans is a grandmother of the said infant, that the said infant resides with said Maria W. Toumans, and that the said infant is a granddaughter, legatee and heir-in-law of said Ransom L. Pond, deceased, and is interested in the estate of said decedent.

The executors have appeared herein, and filed a verified answer, by which none of the allegations contained in the petition are put in issue.. As their sole defense herein they allege: “ That the cause of action in this proceeding alleged in said petition, did not accrue within six years before the commencement of this proceeding, and that this proceeding is, therefore, barred by the six years’ Statute of Limitations, and cannot be maintained.”

The same rule of limitation applies to this proceeding as in an action. Church v. Olendorf, 19 N. Y. St. Repr. 700; Matter of Rogers, 153 N. Y. 316.

[448]*448The chapter of the Code relating to the subject is entitled “ Limitations of the time of enforcing a civil remedy,” and by section 414 it is expressly applied to a special proceeding. Therefore, while the provisions of section 382 of the Code of Civil Procedure require a proceeding of this nature to be commenced within six years from the time when the right to institute the same accrues, yet in this proceeding the facts stated in the petition bring the case within the provisions of section 396 of the Code of Civil Procedure, which provides that: “ If a person, entitled to maintain an action specified in this title * * * is, at the time when the cause of action accrues, within the age of twenty-one years * * * The time of such a disability is not a part of the time limited in this title for commencing the action.” The person in whose behalf the petition is presented herein being within the express exception of the statute by reason of her infancy, it follows that the Statute of Limitations has never commenced to run as against this infant, and affords no answer, whatever, in this proceeding. Matter of Rogers, 153 N. Y. 321.

Mo reason appearing why these executors should not render an account of their proceedings, an order may be entered directing said executors to file their account in this court.

Decreed accordingly.

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3 Mills Surr. 447, 40 Misc. 66, 81 N.Y.S. 249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-pond-nysurct-1903.

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