
    Matter of the Estate of Thomas Beyea, Deceased.
    (Surrogate’s Court—Orange County,
    November, 1894.)
    An executor or administrator may be compelled to account, although more than seven and a half years have expired since his appointment. Executors and administrators are appointed to take the custody and care of the property of others, impressed with certain duties and trusts which they must discharge, in order to be relieved, either by their actual performance or by the presumption of their having been performed; and such presumption will not arise until such duties have been openly repudiated for the statutory period, and does not by the expiration of the statutory period after the time fixed for them to account.
    Under a provision of a will giving to the widow all the real estate, goods, chattels and notes, money and all other personal property, to hold the same during her natural life, and at her death giving to the children all such real estate and personal property which testator had at the time of his death or the death of the wife, the widow is only entitled to the possession of such of the personal property as could only be used by having the possession, and the executors should retain the custody of the moneys and securities and pay over the income only to her.
    A receiver appointed in supplementary proceedings against a legatee may -equire an accounting by an executor.
    Application by a receiver in supplementary proceedings to compel the executor to account.
    Dill & Gox and W. Vanamee, for petitioner.
    
      J. G. R. Taylor, for executor.
   Coleman, S.

An application by a receiver in supplementary proceedings to compel an executor to account.

The testator died August 21,1877, and letters testamentary were granted September 14, 1877, to Samuel and ¡Nathaniel Beyea. By his will the testator gave to his widow “ all his real estate, goods, chattels and notes, money and all other personal property, * "x" * to hold the same during her natural life,” and, at her death, he gave to his four children (said executors being two of them) equally all his “ real estate, goods, chattels, notes, money and all other property which I shall have at the time of my death, or the death of my wife.” The testator’s wife survived him, and died in February, 1894. The petitioner was appointed receiver, etc., of the son Samuel Beyea September 28, 1877;

It was decided in Matter of Van Dyke, 44 Hun, 394, that an administrator with the will annexed could not be compelled, by the Surrogate’s Court, to render an account after seven and a half years from the date of his appointment because of the Statute of Limitations; and the law as there decided was afterwards followed by the surrogate of Westchester in the case of an executor (Matter of Dunham, 1 Con. 323), and by the surrogate of ¡New York in the case of an administrator. Matter of Clayton, Id. 444. But afterwards, in Matter of Camp, 126 N. Y. 377, the Court of Appeals decided that a general guardian could be compelled to render an account sixteen years after his ward became of age, because the fund received by him as guardian was the property of another confided to his care, and in that sense he occupied the position of a trustee so as to prevent the running of the Statute of Limitations, even if it was not a trust in the usual legal sense of the term.

There are some distinctions between the nature and duties of the office of an executor and an administrator and those of a general guardian, but I doubt if they be of such a character as to place them outside of the application of the decision in Matter of Camp, when so broad a character, as to their duties to account, is given such officers. Executors and administrators are appointed to take the custody and care of the property of others impressed with certain duties and trusts which they must discharge in order to be relieved, either by their actual performance, or by the presumption of their having been performed; and it would seem that this presumption will not arise until such duties have been openly repudiated for the statutory period, and does not by the expiration of the statutory period after the time fixed for them to account. Matter of Grandin, 40 N. Y. St. Repr. 655 ; Matter of Camp, supra.

It is claimed on behalf of the executors that they should not be required to give an account of the personal property because the will gave the widow the right to hold it during her life, and there is no > proof that any part of it has, since her death, come into their hands. This is not tenable, because the widow was only entitled to the possession of such of the personal property as could only be used by having the possession, and possibly even such should have been converted. The executor should, however, have retained the custody of moneys and securities and only paid over the income.

A receiver in supplementary proceedings of a judgment debtor legatee may require an accounting by an executor. Matter of Rainey, 5 Misc. Rep. 367.

An order will, therefore, be made requiring the executor Samuel G-. Beyea (he being the only one served) to render an account.

Ordered accordingly.  