
    Wm. F. Pitkin, Adm’r, App’lt, v. Eliza A. Wilcox, Adm’rx, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 28, 1890.)
    
    Executors and administrators—Accounting—Limitation.
    W. died intestate in 1862, and his administrator, L. W., died leaving goods unadministered. He was succeeded by H. W., who died in 1875. In 1877 the appellant was appointed such administrator. In 1877 the respondent was appointed administrator of H. W. In November, 1889, the appellant, then the only next of knof W., sought to compel the respondent to account as representative of II. W. for goods of W. unadministered. Held, that if appellant proceeded as administrator under Code Oiv. Pro., § 2606, the proceeding was barred by the lapse of ten years, and if as next of kin and heir at law, by the lapse of six years (from 1878).
    (Landon, J., dissents.)
    Appeal from order of surrogate denying application for order to compel defendant to account.
    
      O. S. Lester, for app’lt; L. Varney, for resp’t.
   Mayham, J.

This is an appeal from an order of the surrogate of Saratoga county, denying an application of the appellant for an order to compel the respondent to account.

The case was heard and disposed of by the surrogate on the petition and answer. ' '

The petition alleged that in the year 1862 George W.- Wilcox died intestate, and in the same year Lester Wilcox, his brother, was duly appointed administrator of the goods, chattels and credits of the deceased.

That in 1867 or 1868, Lester Wilcox died, leaving goods, chattels and credits of his intestate unadministcred.

That on the 23d of November, 1868, Hiram Wilcox, another brother, was appointed administrator de bonis non of said George W. Wilcox, and that certain personal property enumerated in the petition came into his possession as such administrator, and that he filed inventory of the same, and died on the 25th day of March, 1875, without rendering any account as administrator.

On the 7th day of February, 1877, the appellant on this appeal was appointed administrator de bonis non of the said George W. Wilcox, deceased, to succeed Hiram, and his letters are still in force.

On the 12th of March, 1877, Eliza A. Wilcox, the respondent herein, was appointed administratrix of Hiram Wilcox, her deceased husband, but has filed no inventory and rendered no account of the goods, chattels and credits held by her deceased husband in his own right or as administrator de bonis non of George W. Wilcox, deceased.

The petitioner further alleged that the mother of the petitioner was the only next of kin of George W. Wilcox, deceased; that she died intestate before the filing of the petition in this proceeding, leaving the petitioner her only next of kin.

On this petition citations tested on the 11th of November, 1889, were issued to the respondent, who appeared and filed his answer, alleging:

First. That it appeared from the face of the petition that more than seven years had elapsed since the appointment of respondent as administratrix.

Second. That the proceedings herein to compel her to^ account are barred by the statute of limitations; that more than seven years had elapsed since her appointment.

Third. That the petition was barred by the statute of limitations, on the ground that more than ten years had elapsed since her appointment as administratrix.

Fourth. That the statute of limitations had run against Hiram Wilcox, administrator de bonis non, on the ground that six years and over had elapsed from the time of his appointment to his death.

Fifth. That from the time Hiram Wilcox was appointed administrator to the time respondent was appointed administratrix, the seven years statute of limitations had run against the petitioner, to wit, over eight years, and the claim was barred by the statute of limitations.

Sixth. That by reason of the statute of limitations having run against the petitioner’s claim the surrogate has no jurisdiction to compel an accounting.

The only question raised by the petition and answer, and the only one discussed on this appeal is, as to whether the claim of the petitioner, is barred by the' statute of limitations.

If this claim is barred by the statute of limitations, then it was the duty of the respondent to set it up in this proceeding. “ An executor or administrator is bound to set up the bar of the statute of limitations, and he would not be allowed in his accounting any sum paid upon a debt which at the time of its payment by him was barred by such statute." Butler et al. v. Johnson, 111 N. Y., 212 ; 19 N. Y. State Rep., 85.

If, therefore, at the .time the petitioner instituted these proceedings, on the 11th day of November, 1889, the claim of the personal representative of George W. Wilcox against the estate of Hiram Wilcox was barred by the statute, it was the right and the duty of the-respondent to interpose that defense.

It is not quite apparent from the petition whether these proceedings are instituted by the petitioner as administrator de bonis non of George W. Wilcox, deceased, under the provisions of § 2606 of the Code of Civil Procedure, or as heir-at-law or next •of kin under the Revised Statutes.

The petition is in his name as an individual, but describes him as occupying both relations to the estate of George W. Wilcox

If he proceeded as next of kin it seems well settled, no disabilities being alleged, the limitation of six years would control; if the application was not made and the proceedings instituted within that time, the petitioner would be bound by the six years limitation. Drake v. Wilkie, 30 Hun, 539, 540; Matter of Latz, 33 id., 618 to 621. As next of kin the petitioner, after the expiration of one year from granting of letters, could have cited respondent to account before the surrogate, Code Civ. Pro., § 2724, and could on that account compel a distribution of the estate and payment to him of his distributive share, and in analogy to actions at law to recover a demand that was due the statute would at the time of accruing of that right commence to run and at the end of six years from that time the claim would, unless the running of the statute were suspended by the commencement of proceedings, be barred. Butler et al. v. Johnson, supra.

In the Matter of Van Dyke, 44 Hun, 394; 9 N. Y. State Rep., 137, the court held that an application on the part of the next of kin to compel an executor or administrator to account was a proceeding upon a liability not arising upon a judgment, and came within the provisions of sub. 1 of § 382 of the Code of Civ. Pro., and must be prosecuted within six years after the right to require an accounting shall have accrued.

If, therefore, the petitioner proceeded as next of kin, the right of proceeding would have been barred on and after the 12th of March, 1884, and as the petition was not filed until November 11, 1889, his proceedings would be barred.

We are inclined to the opinion that the petitioner, being the only next of kin, was bound to proceed within six years after his right accrued or show the existence of some disability existing during that time which prevented the statute from running, and. that he ought not to be permitted to lie by and allow a claim which he had a clear right to enforce to become stale, upon the theory that there are cumulative remedies, one given him as next of kin and the other as administrator de bonis non.

But if under the provisions of the Code and the decisions he may do so, still we think this proceeding barred by the statute of limitations.

In the Matter of Latz, supra, it was held that an administrator de bonis non, in moving under § 2606 of the Code to compel an accounting of the administrator of his deceased predecessor was not concurrent with any right of action in an heir at law, and was not, therefore, within the six years limitation, but would come within that of ten years.

Applying the ten years limitation, and it would still seem that the proceedings were barred at the time of filing this petition.

The petition was filed November 11, 1889. The respondent was appointed March 12, 1877. Allowing, as we must, one year disability, before which an accounting can be enforced, and we Still have ten years, seven months and twenty-nine days between the time of the maturing or accruing of this right and that of the commencement of the proceedings.

The order of the surrogate dismissing the petition of the appellant was right, and must be affirmed.

Order affirmed, with costs and printing disbursements.

Learned, P. J, concurs.

Landon, J.

(dissenting.)—I cannot concur. The remedy given by § 2606 Code Civ. Pro., was new; this section took effect in 1880.

The statute of limitation is ten years. Matter of Latz, 33 Hun, 618. The limitation did not begin to run till the section took effect; therefore the ten years had not expired.  