
    Matter of the Compulsory Accounting of Margaret H. Bradley and Robert Armstrong, Jr., as Administrators, etc., of George Bradley, Deceased.
    (Surrogate’s Court, Washington County,
    November, 1898.)
    1. Executors and administrators — Payment — Keeping alive a claim against the intestate—Statute of limitations.
    An executor or administrator cannot revive a claim which has become barred by the Statute of Limitations, but a payment thereon, which can reasonably be inferred to have been the act of both of the administrators of an estate, prevents the claim from becoming outlawed.
    2. Same — Compelling account— Statute of limitations.
    Where more than seven years, and1 more than seven years and six months, have elapsed between the granting of letters to administrators and the filing of a creditor’s petition that they account, the creditor cannot compel an accounting of the personalty, even though he has rights, under a decree made upon a prior judicial settlement of the accounts of the administrators, which are enforcible in a proper proceeding.
    
      3. Same — Single proceeding to compel an account of personalty and the-proceeds of real estate sold for payment of debts.
    In a proceeding to compel an accounting, under subdivision 1 and1 also under subdivision 3 of section 2726 of the Code of Civil Procedure,, of- personalty and also of the proceeds of real estate sold by administrators for the payment of the debts of their intestate, a proceeding in which a decree had been entered, more than six years previously, confirming the sales and directing conveyances and the matter then dropped, the administrators can be compelled to account,, not only for the personalty, but also for the proceeds of such real estate as has been sold by them.
    Proceeding to compel administrators to render an account of their proceedings, including an account of the disposition of moneys received from the proceeds of certain real estate sold by them for the payment of debts of decedent.
    Charles R. Paris (Charles H. Sturges, of counsel), for petitioner.
    Potter & Kellogg, for administrator, Bradley.
   Ingalsbe, S.

This proceeding is instituted to compel the administrators of George Bradley, deceased, to render an account of' their proceedings as such administrators, including an account of the disposition of moneys received from the proceeds of certain real estate sold by them, under a decree of this court, for the payment, of the debts of their intestate. The proceeding is thus twofold in its purpose. It is commenced under subdivisions 1 and 3 of section 2726 of the Code of Civil Procedure to compel an accounting, not only of the personal property of the decedent, but also of the proceeds of the sale of the real estate.

George Bradley died ¡November 5, 1887. On ¡November 15, 1887, letters o-f administration upon his estate were issued to Margaret H. Bradley and Robert Armstrong, Jr. These administrators on November 12, 1890, petitioned for the sale of the decedent’s real estate, for the payment of his debts. A citation was-issued directed to various creditors of the decedent, and among-them, the petitioner herein, Amos L. Sargent. This citation was duly served on Sargent, and in a decree in that proceeding after-wards made, which is neither dated nor filed, the claim of Sargent is allowed at $821.35., Such proceedings were had in the matter,, that on March 31, 1893, a decree was entered confirming the sales-therein, and directing the execution of conveyances. It does not appear that any further proceedings have been had in the real estate matter. On June 26, 1893, these administrators filed a petition for a judicial settlement of them account. In this petition, Sargent’s name did not appear. He did not intervene, and was not a party to the proceeding. A decree entered in that proceeding on May 24, 1894, directed that Sargent be paid the sum of $114.53, adjudged due him in the accounting.

The claim of the petitioner herein is based on a note executed by Bradley & Underwood, for $2,894.51, dated October 7, 1883, payable six months after date. George Bradley was a member of the firm of Bradley & Underwood, and died subsequent to his partner, Underwood. Various payments of interest and principal have been made, thus largely reducing the amount. Interest has been paid on the note to October 1, 1897. These payments were made by Bradley himself, by the bookkeeper of Bradley & Underwood, and latterly by the administrator, Armstrong. It appears, and is uncontradicted, that the petitioner, before any payments were made by Armstrong, demanded payment of the administrator, Bradley, and she referred him to her coadministrator, Armstrong, and that subsequently the latter made the various payments of interest.

It is claimed by the administrator, Bradley, that the payments made by the administrator, Armstrong, did not prevent the running of the Statute of Limitations, and that the note is outlawed. On the other hand, it is claimed by the petitioner that these payments have prevented the running of the statute against his right to compel a judicial settlement of the administrators’ accounts.

Both of these positions seem to be erroneous.

An executor or administrator cannot revive a claim barred by the Statute of Limitations. A claim, however, can be kept outside the provisions of this statute by a payment made thereon by him. A payment by one administrator without the consent of the other upon a promissory note past due, if made before the Statute of Limitations has run on the note, was decided in Heath v. Grenelle, 61 Barb. 190, to save the obligation from the operation of the statute. This was when the payment was the act of one administrator without the consent of the other, while in the present case, it can be reasonably inferred, that the payments were the acts of both' administrators. The act of one administrator will, however, bind the estate, even if the coadministrator does not concur.

It is now well settled that a proceeding to compel an administrator to account must be commenced within six years after the right to acquire it has accrued. This right accrues in one year, or as held in some cases, in one year and six months from the granting of letters. This general rule is now well established, but it is often sought to take cases out of its operation through- some act of the exécutor or administrator. In the case at bar, it is claimed that the payment of interest on the note, by the administrator, will operate to extend the time within which a creditor can compel the administrators to account. This proposition does not seem to bo correct. It is not shown that the petitioner has been under any disability, or has acted in ignorance of his rights, or that he has been misled, or that he has remained inactive by reason of those payments or of any promises, statements or representations made by the administrator. Matter of Mueller, 15 App. Div. 67.

More than seven years, and more than seven years and six months having elapsed between the granting of letters of administration and the filing of the petition herein, we do not think that the-petitioner can compel an accounting, as to the personal property of the estate, though he has rights under the decree heretofore entered, in the judicial settlement of the administrators’ accounts which he can enforce through a proper proceeding.

We now come to the consideration of the question whether in this proceeding, the administrators can be compelled to account for the proceeds of the real estate sold under the decree of this court for the payment of debts. ^ The petitioner bases his right upon subdivision 3 of section 2726 of the Code of Civil Procedure. It is claimed by the administrator that-a proceeding for an accounting and judicial settlement can be had only as to the personal property; that moneys received from the sale of real estate are not a matter of accounting by administrators, and that subdivision 3 only relates to a case where real estate has been sold, and one year has not elapsed since the issuance of letters, thus merely defining an additional case where a judicial settlement may be ordered, and that subdivision 1 establishes the general rule, while subdivisions 2, 3 and 4 merely provide for special cases where an earlier accounting than is provided for in subdivision 1 can be ordered.

The procedure for the sale of real estate is regulated by section 2786 et seq. of the Code. These sections provide for the payment of the proceeds of the sale, into court, and their distribution by the court. This is the orderly manner of procedure, but in this case the moneys have not been so paid. The proceeding was prosecuted to the entry of a decree confirming the sales of the real estate, and directing conveyances, and there dropped. The administrators upon the delivery of these conveyances and the receipt of moneys, became immediately responsible to the court for the moneys so received, and on their failure to proceed further in the regular way, can be compelled to account therefor under subdivision 3 of section 2726.

A careful reading of the section itself, will not support the-contention of the administrator, for in the fourth subdivision, it expressly provides that the Surrogate’s Court may “ compel a judicial settlement of the account of a freeholder, appointed to dispose of the decedent’s real property * * * in like manner as where the same has been disposed of by the executor or administrator.”

A freeholder appointed to sell real estate under the provisions of the statute, can have in his hands no estate moneys, except such as may have been received by him from the sale of real estate. It thus appears, plainly, that the section confers authority to compel executors and administrators also to account for moneys received from that source.

The administrator further claims, that even if this court has power to compel an accounting, as to moneys received from the real estate, that the claim of this petitioner is barred by the Statute of Limitations. This question has already been given attention. A careful consideration of the real estate proceeding alone, however, shows that this contention is not well founded.

In the proceeding for the sale of the real estate, all the parties here were parties. In the decree entered in that matter, the claim of the petitioner was adjudicated as a valid and subsisting indebtedness against the estate of George Bradley. That decision is final until reversed, set aside or vacated. The rule of res judicata applies to judicial determinations in special proceedings as well as in actions. The proceeding in which that adjudication was had, has not been closed. There has been no distribution. The proceeds of the sales have not been brought into court. Within six years, sales of the real estate aggregating over $19,000 have been reported to the court by the administrators, and they have been directed by a decree which is still in force, and not appealed from to execute proper conveyances for this real estate, and receive the purchase moneys therefor. Moreover, no mere lapse of time after an action has been commenced will bar it under the statute. The decree establishing the claim of the petitioner was probably entered more than six years prior to the commencement of this proceeding, but this does not change the situation. This decree did not direct the payment of moneys, but adjudicates certain accounts to be due. Decrees of courts of equity of this kind do not expire by reason of- the' lapse of any number of years, and the question of their enforcement after a long interval of time is for the court to determine after a consideration of all the facts.

An order should be entered herein denying the right of the petitioner to compel the administrators to account for their proceedings as to the personal property of their intestate, and directing them to account for the moneys received by them from the real estate disposed of under the decree, hereinbefore entered in this court, for the sale of the decedent’s real estate for the payment of his debts. ' t

Decreed accordingly.  