
    In the Matter of the Estate of Alexander P. Irvin, Deceased. Mary M. Irvin, as Surviving Executrix, etc., of Richard Irvin, Jr., Deceased, Appellant; Mary Irvin Smith, Respondent.
    
      Account, by an executor of a deceased executor, of the latter’s proceedings as such executor — a legatee of the original testator may apply for it — when the Statute of Limitations will not be a bar thereto,
    
    Where an executor dies eleven years two months and five days after letters testamentary have been issued to him, and letters testamentary are issued upon the deceased executor’s estate March 25, 1896, an application made on the 2d day of August, 1901, by a residuary legatee of the original testator, under section 2606 of the Code of Civil Procedure, to require the executrix of the deceased executor to file an account of the latter’s proceedings, should not be denied on the ground that the Statute of Limitations is a bar thereto, when it appears that the deceased executor, at all times until within about one year of his death, expressly recognized that he held his testator’s entire estate in trust, and from, time to time made payments to the petitioner of amounts to which the latter was entitled as residuary legatee.
    In such a proceeding the petitioner should not be denied relief upon the ground that the Statute of Limitations is a bar, unless all of the facts, establishing that the Statute of -Limitations has run, are clearly shown; if there be any doubt about the facts the better practice is- to grant the order for the accounting, and to determine the application of the Statute of Limitations when an. attempt is made to enforce some right based upon the accounting.
    Appeal by Mary M. Irvin, as surviving executrix, etc., of Richard Irvin, Jr., deceased, from ah order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 2d day of December, 1901, directing her to file an account of the proceedings of Richard Irvin, Jr., as executor of the last will and testament of Alexander P. Irvin, deceased.
    The petition upon which this proceeding was begun was filed August 2, 1901.
    
      Lewis S. LLasla/m, for the appellant.
    
      A. Ooleman Smith, for the respondent.
   Laughlin, J.:

This is a proceeding under the provision of section 2606 of the Code of Civil Procedure, by a residuary legatee of Alexander P„ Irvin, to require the executrix of his executor to file an account of the proceedings of the deceased executor. The authority of the court to make the order for an accounting is challenged upon the ground that the.Statute of Limitations has run against the rights of the petitioner as a residuary legatee, and that, therefore, she is not a "person interested in the estate ” within the meaning of the section of the Code to which reference has been made.

The deceased executor never filed an inventory and his accounts have never been judicially determined. He died eleven years two months and five days after letters testamentary had been issued to him. On the 25th day of March, 1896, seventeen days after his death, the appellant was appointed his executrix.

It seems to be conceded that if the proceedings had been instituted by the successor of the deceased executor the ten years’ Statute of Limitations would control and that it would not commence to run until the date of the issue of letters to the appellant. The law is so stated in the opinion of the Court of Appeals in Matter of Rogers (153 N. Y. 316), where the petitioner, the administrator de bonis non, was the sole residuary legatee and next of kin. The same doctrine was announced in Matter of Watson (64 Hun, 369) and Matter of Latz (33 id. 618). If the proceeding could have been successfully instituted by anybody, we fail to discover any disqualification on the part of the respondent to initiate it. The contention that the petitioner ceased to have an interest in the property cannot be sustained. Section 1819 of the Code of Civil Procedure, which gave her, as a residuary legatee, a right of action against the executor, expressly provides that the Statute of Limitations does not commence to run against her claim until the accounts of the executor have been judicially settled. Inasmuch, therefore, as thé accounts of the deceased executor were never judicially settled, her rights are not barred. Her right of action' against the executor would doubtless be lost if the action were not commenced within six years after the settlement of his accounts. (Butler v. Johnson, 111 N. Y. 204; Clark v. Ford, 1 Abb. Ct. App. Dec. 359.) If, however, on account of the lapse óf time the deceased executor . could not have been required to account or turn over the money or property of the estate in his hands, the propriety of placing a construction on this section of the Code which will require the exeeutrix of Ms estate to do either is not apparent and it may well be that the Court of Appeals did not so intend. In Matter of Rogers (supra) letters testamentary were issued to the administratrix on the 8th day óf July, 1874, and she filed an inventory on the 20th day of October, 1875, but never accounted. She died on the 2d day of January, 1885, that being ten years five months and twenty-two days after her appointment. An accounting could not have been required until one year after the issue of letters testamentary (Code Civ. Proc. § 2726), and, consequently, ten years had not elapsed between the time when she could have been required to account and the date of her death. Upon the facts, of that case, therefore, the only necessary effect of the decision is that where the Statute of Limitations has not run against the right to compel an executor to account, his executor may at any time within ten years after the latter’s appointment he compelled to file an account of the proceedings of the deceased executor. In the case at bar more than ten years elapsed between the time when the executor could have been compelled to account and Ms death. But even if the running of the Statute of Limitations against the right to require the deceased executor to account during his lifetime would bar this accounting, still, we think that the order can be sustained, for it does not satisfactorily appear that on the facts disclosed the ten years’ Statute of' Limitations had run during the lifetime of the deceased executor.

The will is not before us, but it appears by an affidavit, which is not controverted, that the decedent devised and bequeathed to his executors both real and personal property to hold in trust and invest and pay one-third of the net income to his wife for life, and the other two thirds to each of the surviving children as they respectively become of age, and to pay such sum to each of them during their minority as, in the judgment of the executors, might seem necessary for their support and education; that the testator left four children, the youngest of whom became of age on the 13th day of February, 1895 ; that he died seized of a three-fourths interest in premises No. 100 Greenwich street in this city, which property has not been sold and its income is about $1,200 per annum; that $3,500 was paid by the Manhattan Railway Company for fee damages to said premises pursuant to an agreement made on the 7th day of April, 1890, between the deceased executor, the owner of the other fourth interest and said company; that no part of said fee damages have been paid to the petitioner, but that she has received remittances from time to time on account of the annual income from such real estate ; that the deceased executor paid a personal tax on this estate from the date of his appointment to the 25th day of February, 1895, on an assessed valuation of $18,000 ; that on the last-mentioned day the assessment against him, as such executor, was sworn off on the ground that said estate had been distributed. The inference is that the corpus of the estate was devised to the children of the testator, but it is not so expressly stated. It does not appear whether the petitioner was the youngest child or. at what time the other children attained their majority. The wife.of the testator did not survive him. It thus clearly appears that the deceased executor held some of the property, at least, in trust until-the 13th day of April, 1895, when the youngest child became of. age, and that at all times until within about one year of his death he expressly recognized that lie held the entire estate in trust and made payments to the petitioner from time to time of amounts to which he was entitled as. residuary legatee. While he acknowledged by these affirmative acts that he held the property in trust as-executor, the Statute of Limitations did not run against the right to require him to account therefor. (Matter of Petition of Camp, 126 N. Y. 377; Matter of Grandin, 61 Hun, 219; Perkins v. Stimmel, 114 N. Y. 359.)

We find nothing in Matter of Rogers (supra) which requires us to hold otherwise upon the facts disclosed by this record. Nor are these views necessarily in conflict with the decision in the second ■department in Matter of longbotham (38 App. Div. 607), which, on authority of Matter of Rogers, overruled its former decision in Matter of Taylor (30 App. Div. 213). Each of these cases arose ■on a proceeding to compel an executor to account during his lifetime and it does not appear in the reported decision of either, as is shown in the case at bar, that- the executor affirmatively acknowledged his trust while it was claimed that the Statute of Limitations was running.

Whether any of the-estate of Alexander P. Irvin has come into possession of appellant or not, she presumably has the possession of his books, records and papers and is best able to show what trust property reached his hands and his administration of it. The accounting will not be binding upon her except to the extent that the trust property reached her hands and such an accounting is, essential for the purpose of enabling the petitioner to determine the amount owing to her by the estate and as a basis of a proceeding by her against the sureties of the deceased executor or otherwise to compel payment thereof. (Code Oiv. Proc. §§ 2552, 2606 ; Matter of Fithian, 44 Hun, 457, 460; Perkins v. Stimmel, supra.) Of course the appellant cannot be compelled to deliver over to the respondent any part of the estate which may have come into her custody, but she can be compelled to deliver the same to the other executor of the testator who has. qualified since the death, of the former executor, provided the Statute of Limitations has not run against the right. (Matter of Moehring, 154 N. Y. 423 ; Matter of Fithiam, supra.)

Hpon a proceeding of this nature it is not proper to deny the relief, upon the ground that the Statute of Limitations has run against the remedy unless all the facts upon which the running of the Statute of Limitations might depend are clearly shown. A person obtaining possession of property as executor should not be permitted to acquire title thereto by failure of those interested to require him to account unless there is. no avenue of escape from such an inequitable result. If there be any doubt about the facts, the better practice is to grant the order. The facts may be clearly presented on the account filed pursuant to the order or on the proceedings subsequently had thereon. This seems to have been the primary purpose of the enactment. (Matter of Latz, supra; Matter of Fithiam, supra.) The application of the Statute of Limitations may then be determined more satisfactorily when it is sought to enforce some right based on the accounting. ■

The order should, therefore, be affirmed, .with ten dollars costs and disbursements.

Van Brunt, P. J., Patterson and O’Brien, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  