
    John DeWitt Peltz et al., Adm’rs, Resp’ts, v. John A. Schultes et al., Ex’rs, App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed September 29, 1893.)
    
    Executors and administrators—Costs.
    Defendants, as executors of a deceased executor, were cited to account for property of the estate of which their testatrix was executor which had come to their hands, and set up the statute of limitations as a defense, on which they were defeated. They claim to have acted on the advice of counsel and that of creditors of the estate they represented. Held, that such plea was an unconscionable one under the circumstances, and that the defendants were personally liable for the costs.
    Motion to modify decree so as to relieve defendants from any personal liability for costs and expenses. For opinion on the appeal see 46 St. Rep., 216.
    
      John D. White (Eugene Burlingame, of counsel), for app’lts; William McElroy (William L. Learned, of counsel), for resp’ts.
   Per Curiam.

At the last term of this court we affirmed the decision of the surrogate in the above entitled matter, and awarded the costs and expenses of the appeal against the defendants personally.

The defendants now apply to this court to have the decree against them so modified as to relieve them from any personal liability for such costs and expenses. They allege in their petition for such relief that when they were asked to account for any property belonging to the estate of Isaac H. Watson that had come into their hands as the executors of Mary Watson, that they consulted counsel and also the creditors of Mary Watson, and did the same thing again after the decision of the surrogate, from which they appealed, and they claim to have been' advised by such counsel and creditors to take the course that they have taken.

The facts in the case are sufficiently stated in the opinion handed down when the appeal was decided.

It is very clear that the executors of the estate of Mary Watson had no right to retain any of the property of Isaac H. Watson.

The creditors of Mary Watson had no interest in it. There was no reason why they should be consulted in regard to it. The defendants must have known that the creditors of Mary Watson could not be paid out of the assets of Isaac Watson.

Again, they state that they were advised to set up the statute of limitations in opposition to their being brought to account.

That was briefly discussed in the opinion heretofore pronounced in this case. The effect of a successful effort in that respect .will be adverted to here as bearing upon the consideration the defendants are entitled to from this court upon this application. Had the defendants been successful in that defense, they would have been left in possession of property to which they had no right or title, and for which no one could call them to account.

The defendants must have been perfectly aware of that.

It is not the case of executors resisting the payment of a stale claim made against an estate, but apparently an attempt to invoke a statute enacted for other purposes to enable them to retain property to which they are not entitled from those who are.

The plea, under the circumstances, was an unconscionable one, and leaves the defendants open to the suspicion that, by invoking it, the defendants intended, under the forms of law, to appropriate to their own use property which did not belong to them.

The proceedings in the case are not such as to commend themselves to the court, and the motion must be denied, with ten dollars costs, to be paid by the defendants personally.

Mayham, P. J., Putnam and Herrick, JJ., concur.  