
    In the Matter of the Judicial Settlement of the Account of Benjamin H. Kendrick, as Adm’r of Edward E. Kendrick, Deceased.
    
    
      (Court of Appeals,
    
    
      Filed October 11, 1887.)
    
    1. Statute of limitations—Acknowledgement by administrator will NOT REVIVE STALE CLAIM AGAINST DECEDENT’S ESTATE.
    Where a claim against the estate of an intesiate has been barred by the statute of limitations, no acknowledgement or new promise made by the administrator can revive the debt against the other creditors or the next of kin of the intestate.
    2. Same—Code Civil Pro., § 376—Time of, not extended by Code Civil Pro., § 403
    It is declared by Code Civil Pro., § 376, that a judgment shall be presumed to be paid and satisfied after the expiration of 20 years from the time when the party recovering it was first entitled to enforce it, and that this presumption is conclusive, except as against a person, who within twenty years from that time, makes a payment, or acknowledges an indebtedness of some part of the amount recovered. By Code Civil Pro., § 4li3, it is provided that the term of eighteen months after the death, within the state, of a person against whom a cause of action exists, is not a part of the time limited for the commencement of an action against his executor or administrator. Held, that lilis extension of time did not apply to Code Civil Pro., § 376, and that the time limited by the latter section was not extended by any Code provision.
    3. Same—What acknowledgment by administrator does not operate to revive claim against decedent’s estate.
    An adm'ssion or acknowledgment of a debt made by the administrator of the deceas, d del tor in his answer in an action brought on another claim by a person other than the creditor is not effectual to rebut the presumption of payment or revive a debt barred by the statute of limitations.
    4. Same—When mention of claim in petition of administrator will NOT REVIVE IT.
    A petition for the judicial settlement of an administrator’s account setting forth the name of a person as a judgment-creditor of the intestate, but not specifying the amount of the judgment, date of its recovery, or whether anything is due thereon, does not amount to a written acknowledgment of the debt, especially where the verified account of the administrator, verified at the same time with the petition sets forth the judgment as a disputed claim.
    5. Same—Who may object to acknowledgment of claim by the adminTRATOR.
    
      Held, that another judgment-creditor of the intestate could object to any amendment of the administrator intended to api rate as an acknowledgment of a claim barred by the statute of limitations, when the estate of the intestate was insufficient to liquidate both claims.
    
      Samuel H. Randall, for app’lt; Henry S. Atwater, for resp’t.
    
      
       Affirming 6 N. Y. State Rep., 521.
    
   Rapallo, J.

—The appellant, Edward B. Wesley, claimed before the surrogate on the final settlement of the accounts of the administrator, to be a judgment creditor of the intestate, and as such entitled to payment in preference to other creditors. The surrogate decided that the judgment under which the appellant claims, having been recovered more than twenty years before the application for its payment, must, under the statute, be conclusively presumed to have been paid, and on that ground rejected the claim.

The judgment was recovered by Wesley against Edward E. Kendrick, the intestate, on the 29th of May, 1863. Kendrick died January 9, 1883. His administrator qualified February 9, 1883, and Wesley presented his claim March 27, 1884. More than twenty years had then elapsed after the recovery of the judgment, and the statutory presumption of payment had been attached. It is not claimed that any payment had been made, or acknowledgment of a continuing indebtedness given, before such presentation, and the claim being then barred by the statute, no acknowledgment or new promise made by the administrator after it had been barred, would, if made, have been available to revive the debt against the other creditors or next of kin of the intestate. McLaren v. McMartin, 36 N. Y., 88.

The learned surrogate of New York treats the case as if section 403 of the Code were applicable, which provides that £ 6 the term of eighteen months after the death, within the state, of a person against whom a cause of action exists, is not a part of the time limited for the commencement of an action against his executor or administrator,” and by the application of that section he assumes that the presumption of payment did not attach until November 30, 1884, which would have been twenty-one years and six months after the recovery of the judgment, and that an acknowledgment, if made by the administrator in proper form within twenty-one years and six months, would have been sufficient. We do not agree to the correctness of that view. The statute (Code, § 376) declares that a judgment shall be presumed to be paid and satisfied after the expiration of twenty years from the time- when the party recovering it was first entitled to a mandate to enforce it, and that this presumption is conclusive except as against a person who, within twenty years from that time, makes a payment or acknowledges an indebtedness of some part of the amount recovered.

The extension of eighteen months mentioned in section 403, applies only to those sections, following section 380, which limit the time for commencing certain actions, and are added to the times limited in those sections for bringing the action, but there is no provision contained in the Code which, under any circumstances, extends the time within which an acknowledgment or payment must be made, in order to have the effect of rebutting the otherwise conclusive presumption, after the lapse of twenty years, that a judgment had been paid and satisfied.

All the acts which the appellant claims to have constituted acknowledgments of indebtedness sufficient to rebut the presumption of payment of his judgment, were performed on or after the 27th of March, 1884, which was twenty years and nearly ten months after the entry of the judgment, and they were for that reason ineffectual to revive the judgment. But assuming that the extension of eighteen months was applicable, and that, therefore, the presumption of payment did not arise "until the 30th of November, 1884, we think that no sufficient acknowledgment was shown.

On the 27th of February, 1884, the executors of Catharine Visscher, who are respondents on this appeal, presented to the surrogate a petition that the administrator of Kendrick be decreed to pay a judgment recovered by the testator of the petitioners against Kendrick, the intestate, on the 29th of December, 1865. The administrator, in his answer to that petition, verified March 27, 1884, and filed March 28, 1884, set up, among other things, the judgment which had been recovered by Wesley, the appellant, on the 29th of May, 1863; that it was entitled to priority over the Visscher judgment; that notice of the claim on the Wesley judgment had been duly served on the administrator, and that the assets in his hands were less than the amount of said Wesley judgment.

This answer is claimed by the appellant to constitute an acknowledgment in writing that the Wesley judgment was a subsisting claim against the estate. But we are of opinion that the answer to the Visscher petition was insufficient to revive the Wesley judgment, and that the appellant cannot avail himself of it, for the reason, in addition to the one already stated, that the appellant was not a party to the proceeding in which the answer was interposed; that the acknowledgment claimed to be contained in the answer was not made to the apellant nor to his agent, nor to anyone acting in his behalf, nor was it intended to be communicated to him or to influence his conduct. An admission or acknowledgment, made under such circumstances, to a stranger, is not effectual to rebut the presumption of payment, or to revive a debt barred by the statute of limitations. Bloodgood v. Bruen, 8 N.Y., 362; Wakeman v. Sherman, 9 id., 85; DeFreest v. Warner, 98 id., 217.

It is further claimed that in the proceedings for a final accounting now under review, the administrator acknowledged the liability of the estate on the appellant’s judgment.

The petition for the judicial settlement of the administrator’s account was verified November 20, 1884, and filed November 28, 1884. It set forth, as required by section 2729 of the Code, the names of the persons interested in the estate of the deceased, as creditors, legatees, next of kin or otherwise, and therefore required by law to be cited to the best of the knowledge, information and belief of the petitioner, and among the persons so named was “Edward B. Wesley, a judgment creditor of the deceased;” and it prayed for a citation, etc. A citation was thereupon issued to the persons named, returnable December 24, 1884. The petition did not specify the amount of the judgment, the date of its recovery, or that any amount was due thereon. Section 2729 required that persons claiming to be creditors be named in the petition, and the mere naming of Wesley as a creditor to be cited, without any other statement, did not amount to a written acknowledgment of the debt, especially as the administrator’s account, which was verified at the same time with the petition, set forth the Wesley judgment, and stated that the claim of the appellant thereon was disputed by the administrator.

This account, setting forth the Wesley judgment as a disputed claim, was filed on the 15th of December, 1884, long after the expiration of the extension of the eighteen months allowed by section 403, assuming that such extension was to be allowed.

On the hearing before the surrogate in January, 1885, an order was made, on motion of the administrator, allowing the account to be amended by striking out the statement that the Wesley judgment was a disputed claim, but it was too late at that time to bind the estate by any acknowledgment of the administrator. The account as rendered had been filed with the surrogate on the 15th of December, 1884, and the executors of Visscher, another judgment creditor, whose claim was not barred by lapse of time, had filed objections to the claim on the Wesley judgment, alleging that it had been recovered more than twenty years previously, excluding eighteen months after the death of the intestate, and that it was barred by the statute. It was out of the power of the administrator, at that stage, to bind the contesting creditors by any acknowledgment of the Wesley judgment as a subsisting claim, and we entertain no doubt of the right of creditors whose claims are not barred, to object to those which are, when the assets are insufficient to pay both.

There are no facts to support the claim on the Wesley judgment other than those which have been referred to. Of course the oral communications between the attorneys for the respective parties cannot be taken into consideration. Code, § 395.

The judgment should be affirmed, with costs.

All concur.  