
    Mary L. O’Flyn, Pl’ff, v. George A. Powers, Ex’r, et al., Def'ts.
    
      (City Court of Brooklyn, General Term,
    
    
      Filed October 31, 1892.)
    
    1. Executors and administrators—Sale op real estate—Limitation.
    The statute of limitations is suspended as against a debt due from the decedent to the executor from the time of the death to the first accounting, not only in the proceeding to prove the same, but also in any proceeding or action to enforce it.
    3. Same.
    Plaintiff’s grandmother devised her residuary estate to defendant in trust for her children, with power of sale of the real estate for the purpose of paying off encumbrances, or for any other purpose which, in his discretion, may render it advisable so to do. Defendant accounted for the first time seventeen years after testatrix’ death, and, at such time, a claim in his favor was allowed, and the proceeds of a sale of real estate was directed to be applied thereon. Seld, that the claim was not barred by the statute, and that he had the right, under said power, to sell the real estate for the payment of the balance of said claim.
    Submission of controversy without action.
    
      W. J. Gaynor, for pl’ff; Fred. Ingraham, for defts.
   Clement, Ch. J.

This case is submitted to the general term, without process, pursuant to § .1279 of the Code, and the facts appear in the printed record.

By § 2740 of the Code, it is provided that, from the death of the decedent until the first judicial settlement of the accounts of the executor, the running of the statute of limitations against a debt due from the decedent to the accounting party is suspended, but that, after the first judicial settlement, the statute begins again to run against the debt. This section was passed in lieu of § 37 of chap. 460 of the Laws of 1837, as amended by chap. 594 of the Laws of 1868. By § 37, the proof of the claim of an executor or administrator could be made, .either on the return before the surrogate of a citation for that purpose, or on the final accounting, and the statute of limitations was not available as a defense, provided the same was presented at the accounting, and providing the claim was not barred by statute at the time of the-death of the testator or intestate. In the Matter of Ryder, 129 N. Y., 640; 41 St. Rep., 557. The claim of Mr. Powers was allowed on the first judicial settlement of his accounts on April 14, 1890, and such allowance was affirmed by the court of appeals. In the-Matter of Powers, 124 N.Y.,361; 36 St. Rep., 347. Judge Bradley, in that case, says, “ The contention that it was not within the legislative contemplation that the suspension of the statute of limitations should be continued beyond six years succeeding one year after the granting of letters testamentary or of administration, has no support in .the plain language of the provision above-mentioned.’’ While Judge Bradley limits the application of his decision to the proceedings in the surrogate’s court, yet his associates held that the proceeds of sale of real estate made as late as 1883, and before the claim was proved, should be retained on account of said claim. If the executor could retain such proceeds, it would seem that he had. a right to sell other property to realize the balance. Section 2740 reads, that the running of the statute of limitations against the debt is suspended from the death to the first judicial settlement, and we think that it means the debt, not only in the proceeding to prove the same before the surrogate, but also in any other proceeding or action wherein the claim is sought to be enforced.

We doubt if an executor could institute proceedings for the sale of real property for the payment of debts until he had proved his claim on a judicial settlement of his accounts. This is not the rule in the case of other creditors, as they may proceed without a judicial settlement. The latter clause of § 2740 is suggestive of the idea that the statute°of limitations is suspended as to all proceedings. If the object of the section was to suspend the statute only for the purpose of proving the claim against the personal property, it would be inferred that the executor had realized all that could be collected prior to the judicial settlement, § 2514 of Code, subd. 8; '§ 2729, and it was not necessary to add to the section that, after the first judicial settlement, the statute begins to run against the debt. Judge Bradley said, on the question whether Mr. Powers could apply the proceeds of sales óf land to the payment of his debt, “ The power was given to the executor to sell for any purpose which, in his discretion, should render it desirable so to do. This placed it within his power to make sale when, in his judgment, it was required to pay debts, taxes or other expenses within his trusts, and to the extent by him deemed necessary for such purpose; subject, however, to the qualification that some permissible occasion existed for the exercise of his discretion in that respect.” We have already noted that one sale was made in 1883, more than three years after the granting of letters, and ten years after the death of Mrs. Macomber, and when the debt of Mr. Powers had outlawed but for the provisions of § 2740. The decision of. the court of appeals on the question of the application of the proceeds of sale was made substantially on the same briefs as in this case, and seems to us to be an adjudication on the questions submitted, and we place our decision solely on the authority of that case.

Judgment in favor of the defendant, George A. Powers, as executor, that he has power under the will of Sarah Macomber to make the sale and conveyance in the submission referred to, and may make the samé and convey a good title in fee thereby, and that said sale shall be specifically performed, with costs to defendant, George A. Powers, executor, to be paid out of the estate.

Osborne and Van Wyok, JJ., concur.  