
    CLARK v. FORD.
    March, 1867.
    *Ehe successors of a removed administrator, who were also interested in .■ the estate as legatees, filed a petition before the surrogate, praying an accounting by their predecessor, and that he be ordered to pay over the amount found due. Nearly ten years having elapsed between the removal and the petition, the predecessor pleaded the statute of limitations.
    
      Held, 1. That there being no authority for a petition in the two characters of legatee and successor in administration, and the relief prayed being such as could only be given to persons interested in the estate as legatees, the proceeding must be deémed to be instituted by the petitioners in that character. «
    2. That, so regarded, it was barred by lapse of time.
    Nathan Ford died in 1829, leaving a will of real and personsonal estate, which was duly proved before the surrogate of St. Lawrence county, and letters. testamentary were granted to the executors therein named, all of whom died on or before April 2, 1842, and letters of administration with the will annexed, were issued to Ohilion Ford, the respondent. He was superseded as such administrator on July 13, 1850, and Edwin Clark and David B. 0. Ford, the appellants, were appointed in his place.
    On June 16, 1860, the appellants presented their petition to the surrogate of St. Lawrence county, setting forth the above facts, and also stating that there had never been a general accounting by Ohilion Ford as administrator; that large sums of money came into his hands which belong to the residuary legatees of said Nathan Ford, or their assignees or representatives; and that the appellant Edwin Clark, was the owner, by assignment, of five-twentieths of the estate, and that the appellant, David B. 0. Ford, was the owner, as one of the resid-uary legatees, of one-tenth of the estate, and as assignee, of one-twentieth.
    The petition was made by the appellants as such administrators, and in their own right, as such assignees and residuary legatees, and prayed, “ that said Chilion Ford may account for all the property and effects of said estate that came to his possession, and may pay over the same.”
    Chilion Ford answered, “ that he ought not to be required to account, because- the time limited by law within which he might have been required to account as such administrator had elapsed long before the commencement of these proceedings, and that none of the claims of the petitioners against him as such administrator had accrued within the time limited by law for the commencement of proceedings to enforce the same, but were barred by the statute of limitations.”
    The surrogate overruled this answer, and ordered him to render a final account.
    
      The supreme court on appeal reversed this order, on grounds substantially the same as those assigned by the opinion in this court. From their decision Clark and Ford appealed.
    
      Wm. G. Brown, for the petitioners, appellants;
    That the petition was not an action, cited Farnham v. Brooks, 9 Pick. 212. That there was no limitation on the surrogate; Gratacap v. Phyfe, 1 Barb. Ch. 485. That mere lapse of time was not a bar, between trustee and cestui que trust; Hill on Trustees ; De Couche v. Savetier, 3 Johns. Ch. 190; Kane v. Bloodgood, 7 Id. 70; Austin v. Brown, 6 Paige, 448; Prevost v. Gratz, 6 Wheat. 481.
    
      Morris & Vary, attorneys for respondents.
   By the Court.

Scrugham, J.

In proceedings instituted by a successor of an administrator, to compel an accounting by his predecessor, the surrogate cannot make any decree for the payment or distribution of such part of the estate as may remain to be paid or distributed; but he may do so when the proceedings are taken upon the application of a person having a demand against the estate, either as creditor, legatee, or next of kin. 2 Rev. Stat. 95, § 71.

The prayer of the petition to the surrogate was not merely for an accounting, but also that the respondent should be required to pay over to the petitioners the property and effects of the estate.

The petitioners applied in two characters — as successors of the administrators, and as persons having demands against the estate as legatees. There is no provision in the statute for such joint application, and the character of the proceeding instituted by the petition must be determined by the nature of the relief sought by it. If it had been merely for an accounting, it could be properly regarded as a proceeding by the successors of an administrator, to compel their predecessor to account; but as it sought, besides, a decree of the surrogate which could not be made upon such proceeding, but which might be proper upon an accounting compelled by persons having a demand against the estate as legatees, it should be treated only as a proceeding instituted by the appellants in that character.

The respondent was appointed administrator with the will annexed, on the death of the last executor in 1842, was superseded on July 13, 1850, and the appellants did not present their petition until June 16, 1860.

An action at law is given, by statute, to legatees entitled to share in the distribution of an estate (3 R. S. 114, § 9), and it may be commenced at the expiration of one year from the granting of letters testamentary, or of administration.

This remedy was barred by the statute of limitations, long before these proceedings before the surrogate were commenced.

Before the Revised Statutes, there was no statutory limitation of the'time within which suits might be commenced in the court of chancery, and yet it was uniformly held, that when the claim was one which could have been enforced by an action at law, the statute of limitations which barred'the remedy at law would be applied to the suit in chancery; that the equitable remedy in a case of concurrent jurisdiction, is subject to the same limitation as the legal Murray v. Costar, 20 Johns. 576-610; Kane v. Bloodgood, 7 Johns. Ch. 91.

The principles upon which this doctrine was established in courts of equity, are equally applicable to proceedings in surrogates’ courts, and it was accordingly held by the late chancellor in McCarter v. Camel, 1 Barb. Ch. 465, that the surrogate could not entertain proceedings to enforce the payment of a distributive share of an estate, which were not instituted before the expiration of the time within which the distributee might have brought an action, under section 9 of the statute to which reference has been made.

The judgment should be affirmed, with costs. ,

All the judges present concurred,

Judgment affirnied, with costs.  