
    In the Matter of the Estate of Solomon W. Ashheim, Deceased. Aaron Cohn, as Executor, etc., of Solomon W. Ashheim, Deceased, Appellant; Saul W. Wolfenstein and David Wolfenstein, Respondents.
    First Department,
    February 9, 1906.
    Executors — when executor cannot avail himself of Statute of Limitations on an accounting.
    An executor in possession of trust funds which he has failed to turn over to a trustee named in the will cannot set up the Statute of Limitations in a proceeding by the beneficiaries to compel him to account. The statute does not commence'to run in favor of an executor until he openly repudiates the trust and asserts and exercises individual ownership over the property, and the question as to whether the statute has run will not be decided until after an accounting.
    Appeal by Aaron Cohn, as executor, etc., of Solomon W. Ashheim, deceased, from a decree of the Surrogate’s Court of the county'.of Mew York, entered in said Surrogate’s Court on the 1st day of Movember, 1905, directing him to file an accounting of his proceedings as such executor. '
    
      Sol. A. Cohn, for the appellant.
    
      John De Witt Warner, for the respondents.
   Laughlin, J.:

The.letters testamentary were issued to the appellant on the 25th day of October, 1884, and they have not been revoked. The executor filed no inventory and heiias never accounted. By a codicil duly admitted to probate with the will, .the testator gave the sum of $48,000 to the Bnited States Trust Company of the city of Mew York, “ in trust to invest the same and to receive the income and interest accruing thereon and to apply such income and interest to the use of ” his sister Jeanette during her life, and oh her decease he directed that said trust fund be distributed among such of her children as survived her and then the living issue of any deceased child, to be divided between them per stirpes and not per capita.” The proceeding for the accounting was instituted on the 6th day of September, 1905, by two surviving children of a deceased, child, of said Jeanette Cohn, who are together entitled to receive one-eighth of said fund. The life beneficiary of the trust fund is still living. The moving papers show 'that the estate that came into the hands of the executor was more than sufficient to pay all debts, expenses, bequests, and legacies, including the trust fund of $48,000 to the trust company, but that the executor has failed, neglécted and refused to pay over to the trust company the said sum of $48,000, and has held, controlled and managed, and still holds, controls and manages, the said fund contrary to the terms and provisions of the codicil'. On the return .day of the citation-the executor filed an answer alleging that "this proceeding was commenced after the expiration ■ of seven years, and after the expiration of ten years from the grant of letters to this respondent,” but not denying any of the facts set forth in the moving papers.

It is strenuously urged that as the executor was not a trustee in the strict sense of the term he has obtained individually, by the mere lapse of time, good title to this property that came, into his. hands as. executor under a commission from the court by which he was required to account therefor, and. that the Statute of Limitations is a bar to the proceeding. This court has frequently held that the Statute of■ Limitations does not commence to run in. favor of a trustee until he openly repudiates the trust and asserts and exercises individual ownership over the trust property. (Matter of Irvin, 68 App. Div. 158; Matter of Jones, 51 id. 420.)

We have also in the interest of honesty extended* the rule by analogy to the case of executors who are trustees in a sense,.even .though they be not, strictly speaking, trustees; and we have established the rule that unless the facts, upon which the running of the Statute of Limitations depends, are clear and uncontroverted, mere lapse of time is not a bar to the accounting, and that the question as to whether the Statute,of Limitations is a bar to any claim made by the petitioners should not be decided before the accounting is had. (Matter of Irvin, supra; Matter of Meyer, 98 App. Div. 7; affd., 181 N. Y. 553.) In these, cases we reviewed the principal authorities upon which the appellant relies, and it is not necessary to distinguish them again. Here the Statute of Limitations may or may not be .a bar. Many material facts essential to a correct decision of the question are not disclosed. The executor relies on the mere lapse of timo, which alone is not a defense to a proceeding to compel him to account. Not only has this rule been frequently promulgated by this court, hut it has been finally approved by -the Court of Appeals in affirming our decision in Matter of Meyer (supra).on the opinion of this court, and answering in the negative the question certified : “ -In the absence of any act of an executor repudiating his liability as trustee, is the lapse of thirteen years and nine months from the time of the issue of letters testamentary a bar to a proceeding to compel the executor to account?”

Therefore, the question as to whether the right of the petitioners to compel the executor to pay over this fund to the trust company is barred by the/Statute of Limitations must be left open, and the order requiring the executor to account should be affirmed, with ten dollars costs- and disbursements.*

O’Brien, P. J., Ingraham, Clarke and Houghton, JJ., concurred. - '

Order affirmed, with ten dollars costs and disbursements.  