The Surrogate.
The above decedent died intestate July 27, 1869, leaving her surviving, her husband, Charles H. Clayton, and six children, one of whom died Nov. 24, 1876, leaving two children, two of the contestants herein, through their special guar[446]*446dian. Letters of administration were granted to said Charles H. Clayton on the 19th day of September, 1871. He has never made or filed an inventory of the estate.
On the 10th of May, 1886, George D. Cragin, Jr., the husband of the deceased daughter of the intestate, filed his petition to compel said administrator to account, and thereafter on the 29th day of September, 1886, the administrator filed the account, to which objections were filed, and on the 29th day of October, 1886, he voluntarily petitioned this court for leave to file his account, which was granted, and his voluntary account was filed December 30, 1886. Subsequently an order was made consolidating the two accounts and the usual reference ordered. The referee filed his report, to which exceptions have been filed.
The facts are that in 1861 one Matthew Byrnes, for the consideration of $19,000, conveyed to Sarah E. Clayton, the decedent, a house and lot on East Thirty-fourth- street, this city, the consideration being paid as follows: $7,775 in cash and the balance by the assumption by her husband, the accounting party, of a mortgage of $11,000. He joined in the deed. In 1863, said Charles H. Clayton, with his own money, paid said mortgage. In 1864, this house and lot was sold by the decedent to one Joseph Stiner for the sum of $25,000, paid as follows: $12,000 in cash to her, and the balance, $13,000, by the bond and mortgage of said Stiner for that amount to her as mortgagee. In January, 1867, she bought certain real estate at Orange, New Jersey, for the sum of $10,000, paid as follows: $500 at the time the contract of pur[447]*447chase was made; $500 at the time the deed was delivered, and $4,500 by the giving of á bond, secured by a-mortgage, payable one year after its date, which said bond was the joint and several bond of Charles H. Clayton, her husband, and herself. Said Charles H. Clayton paid said sum of $5,000 cash with his own money, and when said bond became due and payable, with his own money paid the same with interest.
The testimony shows that the husband of the decedent transacted most of her business, and from October, 1869, up to the payment of the Stiner mortgage collected the interest thereon, amounting to $2,275, and retained the same to his own use, and in October, 1871, received the principal thereof, amounting to $13,000 and retained the same to his own use, claiming that his wife had assigned and delivered the bond and mortgage to him in consideration of moneys advanced by him for the Orange property. Such assignment was not in writing. Letters of administration were taken out by him in 1871 for the purpose of satisfying said mortgage. , He has always claimed to be the absolute owner of all the personal property of decedent.
On March 2, 1887, the administrator filed with the referee an answer to the objections filed to his account, thereby interposing the statute of limitations to any claim of the contestants. No assets or property of the estate were received by him for about fifteen years prior to the filing of the petition herein.
The questions as presented by the report and exceptions are:
[448]*448First—At the time of her death was Sarah E. Clayton the legal owner of the Stiner bond and mortgage ?
Second—Were, or are, the contestants barred by the statute of limitations, and if so, has the administrator waived the statute by filing his account ?
The referee has found that at the time of her death the intestate was the legal owner of the bond and mortgage, and that the contestants are barred by the statute.
Upon the first question the evidence is very meagre.
The administrator being forbidden to testify as to personal transactions or communications with the deceased, the evidence offered to substantiate his claim, that the Stiner bond and mortgage had been assigned to him, was almost wholly assigned to him, was almost wholly confined to documents; the checks given to the mortgagee for the interest, and the deed, and bond and -mortgage. It is true that from 1867, Stiner, the mortgagor made the checks for the interest payable to the order of Charles H. Clayton, whereas before that time they had been to the order of Sarah E. Clayton, though delivered to her husband. It is also proved that Mr. Clayton advanced the purchase money for the Orange property, which, as the learned referee argues, is only proof of an indebtedness of his wife to him, and not presumptive evidence of a new and independent contract, namely, of a sale and delivery by Mrs. Clayton to him of the Stiner bond and mortgage. These facts of themselves could not be held to establish the -assignment claimed, and, considered with what other testimony there is on this point, would not warrant such a finding by the referee.
[449]*449I now come to the very important question: Are these contestants barred by the statute of limitations ?
By 2 R. S., p. 92, sec. 63, all parties interested in the estate had an absolute right to demand an account eighteen months after letters of administration were granted, and this provision has not been changed by the Code of Civil Procedure. Up to the enactment of the Code the undoubted and well settled rule on this point was that the statute of limitations began to run as soon as the right to compel an accounting had accrued, namely, eighteen months from the time the letters were issued. Clark v. Ford, 1 Abb. App. Dec. 359 ; McCartee v. Camel, 1 Barb. Ch. 455 ; Am. Bible Soc. v. Hebard, 51 Barb. 552 ; aff’d, 41 N. Y. 619 ; Cole v. Terpenning, 25 Hun, 482 ; Clock v. Chadeagne, 10 Hun, 97 ; Smith v. Remington, 42 Barb. 75.
It will be seen from a study of the above cases that prior to the Code of Civil Procedure in a proceeding to compel the payment of a legacy or distributive share, there was no statute of limitations which applied in express terms. But by statute, the executor or administrator, had a concurrent remedy by action at law, and the rule is undisputed that where there is a legal as well as an equitable remedy, in respect to the same subject-matter, the latter is subject to the same statutory limitation as the former.
Since the enactment of the Code conflicting decisions are found.
In Collins v. Waydell, 3 Dem. 30, the Surrogate held that the statute did not commence to run where an action is sought to be brought to compel the pay[450]*450ment of a legacy or distributive share until there had. been a judicial settlement of the executor’s account.
In Wood v. Rusco, 4 Redf. 380, it was held that the claim of a person entitled to a share in the estate was not barred if presented within six years after the claimant learns of the appointment of an administrator, and the learned Surrogate says that if the petitioner had been in a position to act, namely, had known of the appointment of the administrator, the six years’ limitation would have attached.
The contention of the contestants herein, that they are not barred by the statute until six years have elapsed since they learned that letters of administration had been issued, is apparently sustained by high authority.
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The Surrogate.
The above decedent died intestate July 27, 1869, leaving her surviving, her husband, Charles H. Clayton, and six children, one of whom died Nov. 24, 1876, leaving two children, two of the contestants herein, through their special guar[446]*446dian. Letters of administration were granted to said Charles H. Clayton on the 19th day of September, 1871. He has never made or filed an inventory of the estate.
On the 10th of May, 1886, George D. Cragin, Jr., the husband of the deceased daughter of the intestate, filed his petition to compel said administrator to account, and thereafter on the 29th day of September, 1886, the administrator filed the account, to which objections were filed, and on the 29th day of October, 1886, he voluntarily petitioned this court for leave to file his account, which was granted, and his voluntary account was filed December 30, 1886. Subsequently an order was made consolidating the two accounts and the usual reference ordered. The referee filed his report, to which exceptions have been filed.
The facts are that in 1861 one Matthew Byrnes, for the consideration of $19,000, conveyed to Sarah E. Clayton, the decedent, a house and lot on East Thirty-fourth- street, this city, the consideration being paid as follows: $7,775 in cash and the balance by the assumption by her husband, the accounting party, of a mortgage of $11,000. He joined in the deed. In 1863, said Charles H. Clayton, with his own money, paid said mortgage. In 1864, this house and lot was sold by the decedent to one Joseph Stiner for the sum of $25,000, paid as follows: $12,000 in cash to her, and the balance, $13,000, by the bond and mortgage of said Stiner for that amount to her as mortgagee. In January, 1867, she bought certain real estate at Orange, New Jersey, for the sum of $10,000, paid as follows: $500 at the time the contract of pur[447]*447chase was made; $500 at the time the deed was delivered, and $4,500 by the giving of á bond, secured by a-mortgage, payable one year after its date, which said bond was the joint and several bond of Charles H. Clayton, her husband, and herself. Said Charles H. Clayton paid said sum of $5,000 cash with his own money, and when said bond became due and payable, with his own money paid the same with interest.
The testimony shows that the husband of the decedent transacted most of her business, and from October, 1869, up to the payment of the Stiner mortgage collected the interest thereon, amounting to $2,275, and retained the same to his own use, and in October, 1871, received the principal thereof, amounting to $13,000 and retained the same to his own use, claiming that his wife had assigned and delivered the bond and mortgage to him in consideration of moneys advanced by him for the Orange property. Such assignment was not in writing. Letters of administration were taken out by him in 1871 for the purpose of satisfying said mortgage. , He has always claimed to be the absolute owner of all the personal property of decedent.
On March 2, 1887, the administrator filed with the referee an answer to the objections filed to his account, thereby interposing the statute of limitations to any claim of the contestants. No assets or property of the estate were received by him for about fifteen years prior to the filing of the petition herein.
The questions as presented by the report and exceptions are:
[448]*448First—At the time of her death was Sarah E. Clayton the legal owner of the Stiner bond and mortgage ?
Second—Were, or are, the contestants barred by the statute of limitations, and if so, has the administrator waived the statute by filing his account ?
The referee has found that at the time of her death the intestate was the legal owner of the bond and mortgage, and that the contestants are barred by the statute.
Upon the first question the evidence is very meagre.
The administrator being forbidden to testify as to personal transactions or communications with the deceased, the evidence offered to substantiate his claim, that the Stiner bond and mortgage had been assigned to him, was almost wholly assigned to him, was almost wholly confined to documents; the checks given to the mortgagee for the interest, and the deed, and bond and -mortgage. It is true that from 1867, Stiner, the mortgagor made the checks for the interest payable to the order of Charles H. Clayton, whereas before that time they had been to the order of Sarah E. Clayton, though delivered to her husband. It is also proved that Mr. Clayton advanced the purchase money for the Orange property, which, as the learned referee argues, is only proof of an indebtedness of his wife to him, and not presumptive evidence of a new and independent contract, namely, of a sale and delivery by Mrs. Clayton to him of the Stiner bond and mortgage. These facts of themselves could not be held to establish the -assignment claimed, and, considered with what other testimony there is on this point, would not warrant such a finding by the referee.
[449]*449I now come to the very important question: Are these contestants barred by the statute of limitations ?
By 2 R. S., p. 92, sec. 63, all parties interested in the estate had an absolute right to demand an account eighteen months after letters of administration were granted, and this provision has not been changed by the Code of Civil Procedure. Up to the enactment of the Code the undoubted and well settled rule on this point was that the statute of limitations began to run as soon as the right to compel an accounting had accrued, namely, eighteen months from the time the letters were issued. Clark v. Ford, 1 Abb. App. Dec. 359 ; McCartee v. Camel, 1 Barb. Ch. 455 ; Am. Bible Soc. v. Hebard, 51 Barb. 552 ; aff’d, 41 N. Y. 619 ; Cole v. Terpenning, 25 Hun, 482 ; Clock v. Chadeagne, 10 Hun, 97 ; Smith v. Remington, 42 Barb. 75.
It will be seen from a study of the above cases that prior to the Code of Civil Procedure in a proceeding to compel the payment of a legacy or distributive share, there was no statute of limitations which applied in express terms. But by statute, the executor or administrator, had a concurrent remedy by action at law, and the rule is undisputed that where there is a legal as well as an equitable remedy, in respect to the same subject-matter, the latter is subject to the same statutory limitation as the former.
Since the enactment of the Code conflicting decisions are found.
In Collins v. Waydell, 3 Dem. 30, the Surrogate held that the statute did not commence to run where an action is sought to be brought to compel the pay[450]*450ment of a legacy or distributive share until there had. been a judicial settlement of the executor’s account.
In Wood v. Rusco, 4 Redf. 380, it was held that the claim of a person entitled to a share in the estate was not barred if presented within six years after the claimant learns of the appointment of an administrator, and the learned Surrogate says that if the petitioner had been in a position to act, namely, had known of the appointment of the administrator, the six years’ limitation would have attached.
The contention of the contestants herein, that they are not barred by the statute until six years have elapsed since they learned that letters of administration had been issued, is apparently sustained by high authority. The General Term of the Fourth Department considered this point at length in the case of Drake v. Wilkie, 30 Hun, 537. As to the relative points of time, that case is similar to the one at bar, inasmuch as in that case the plaintiff’s right of action was not barred by the statute in force at the time of the adoption of the first part of the Code of Civil Procedure, September 1, 1877 ; it did not fall within any of the exceptions in section 414 thereof, and was thereafter governed by the rules therein prescribed.
In the above case a legatee accepted a sum as payment in full of her legacy, much less than the amount thereof; this was in 1872. In 1881 she was first informed of the true amount of the legacy, and within a few months instituted proceedings to compel the payment of the balance. The executor interposed the defence of the statute of limitations.
The court held that as 2 R. S., p. 114, sec. 9, giving [451]*451a right of action for a legacy, and sec. 1819 of the Code of Civil Procedure, which took its place, required a demand for the legacy to be made upon the executor before any action could be brought therefor, the limitation applicable to the cause of action thereby given was prescribed by section 410 of the Code, and as the case fell within subdivision 1 of that section, which provides that the time is to be computed only from the time when the person having the right to make the demand has actual knowledge of the facts upon which that right depends, the statute did not begin to run until 1881.
It is proven beyond a doubt in the case at bar that the contestants did not know that letters of administration had been granted to Mr. Clayton until about five years before the institution of this proceeding. The case just cited would be controlling and seem to dispose of the question were it not for a later decision, which, after a good deal of study, I am of the opinion establishes a different rule. In the Matter of Van Dyke, 44 Hun, 394, the intestate died on the 18th day of August, 1874, and letters of administration were issued to Michael M. Yan Dyke on the 15th day of September of the same year. He died in September, 1885, and the appellant was appointed the administrator c. t. a. in October of that year. The petition for an accounting was presented in September, 1886. .The statute of limitations was interposed as an answer to the petition, but-that was overruled by the Surrogate, who cited many cases, among which was Drake v. Wilkie, supra, and the accounting directed. Justice Daniels in the course of his opinion says: “ That [452]*452the proceeding before the Surrogate was a special proceeding is conceded, as it necessarily must be, by each of the contesting parties, and as a special proceeding it was subjected, by section 414 of the Code of Civil Procedure, to the same rules of limitation as have been applicable to actions, subject to certain exceptions.....And having been subjected to these rules of limitation, according to the provisions of section 382 of the same Code. The proceedings to enforce an accounting should be commenced within six years after the right to acquire it shall have accrued.”
He says further, in substance, that as by section 2724 of the Code an administrator may be required to submit to a judicial settlement of his accounts after the expiration of one year from the time letters were issued to him, the obligation to account accrues at that time, and under the provisions of section 382 the right to require an accounting will be barred after the expiration of six years from the time when the accounting may be ordered according to section 2724.
The learned justice then discusses section 1819 and determines that it contains no limitation of time within which the administrator may be called to account, and relates simply to the time when an action may be commenced to compel the payment of a distributive share or legacy, viz.: when the accounting has taken place.
It will be seen that this case decides that there is a different limitation of time in the two proceedings; that the proceeding for an accounting, governed by sections 382, 414, 2724, must be commenced within six years from the time the right accrued, and the [453]*453proceeding for the payment of a legacy or distributive share is made dependent upon the accounting.
This case, while not overruling Drake v. Wilkie, supra, renders it inapplicable to the case at bar.
There, remains another question to be considered.
By the filing of the voluntary account did the administrator waive the statute of limitations ?
By schedule G of his account the administrator admits taking out letters and admits receiving the proceeds of the Stiner bond and mortgage, but says it was done nominally, as administrator, and claims to be the owner of it himself, and says that letters were taken out merely to oblige the mortgagor and perfect his title, and denies that there is any title in any one else, or that he is liable to account therefor. There is no acknowledgment in his account of this bond and mortgage being an asset of the estate. On the contrary there is a denial that he is under obligation to account to any one. The exceptions to this finding of the referee are overruled.
The remaining question of whether the plea of the statute of limitations was put in too late, I decide in the negative. Smith v. Remington, 42 Barb. 75 ; Van Vleck v. Burroughs, 6 Barb. 341 ; Clock v. Chadeagne, 10 Hun, 97.
It is claimed by the contestants that as Arthur and Ernest Clayton did not arrive at .majority until September, 1880, and November 26, 1883, respectively, the statute has not run against them, and therefore the administrator should account to all parties interested. This position is not tenable, for, though cited [454]*454the two parties have never appeared in the proceeding nor filed objections to the account.
The report of the referee is confirmed.
Note.—As to the statute of limitations as a bar to compelling an. accounting, see also Matter of Dunham, supra, p. 323.