
    In the Matter of the Judicial Settlement of Accounts of Benjamin S. Mills, Ex’r.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 9, 1891.)
    
    Executors and administrators—Accounting—Limitation.
    Where an executor or administrator pays the assets to the next of kin in advance of the final settlement, and there are costs incurred in an action in which the executor failed to recover, the statute of limitations is no defense to a proceeding to compel him to account, brought by the party in whose favor the costs were awarded.
    Appeal from order of surrogate denying application that the-executor of the estate of Clarissa Darling pay to the petitioners: the amount of a judgment for costs in a suit instituted by him 'against them.
    In 1886, as such executor, he instituted a proceeding against the petitioners herein, administrators of the estate of Elizabeth Jayne, deceased, to recover the amount of a note held by said Clarissa Darling against said Elizabeth Jayne, and as the result of the litigation, a judgment for $426.11, for costs, was rendered ■against said Benjamin S. Mills, as executor, etc., in September, 1889.
    On this proceeding the executor filed an account showing that the assets had all been distributed among the heirs in 1871 and 1872; that the debts were paid and the children agreed on the division of the property, and none of it ever came into the hands -of the executor, and set up the statute of limitations.
    The surrogate sustained this defense and denied the petitioners’ motion.
    
      Thos. J. Ritch, Jr., for app’lts; George F. Stackpole, for resp’t.
   Barnard, P. J.

An executor or administrator cannot pay the ■assets to the next of kin in advance of the final settlement. If he do so and there be costs and charges put upon the estate in an .action where the executor or administrator failed to recover, the •statute of limitations is no defense to an accounting by the administrator or executor. The executor may be even bound by the statute as between himself and the heir or next of kin; but it has no relevancy to the petitioners’ claim to be paid out of the estate.

The judgment should be reversed and a new trial granted, costs to abide the event.

Dykhan and Pratt, JJ., concur.  