
    In the Matter of the Estate of Elizabeth S. Campbell, Deceased. Mary E. Cooper, as Executrix, etc., of Henry Campbell, Deceased, Appellant; George R. Edgerton, as Executor, etc., of Elizabeth S. Campbell, Deceased, Respondent.
    
      Articles belonging to the estate of a deceased, wife given by statute to the husband, — what refusal by him to accept them justifies the executor in giving them, to the next of kin — an action therefor by the husband’s executrix is barred by the six years’ Statute of Limitations — section 2724 of the Code of Civil Procedure does not change the remedy to one in equity.
    
    The executor of the wife of Henry Campbell tendered to him §150 in satisfaction of the husband’s statutory exemptions in the wife’s personal estate. The husband declined to receive the money, stating that he did not desire to receive anything from his wife’s estate. Shortly thereafter the executor delivered all his testatrix’s property, including that to which the husband was entitled, to the testatrix’s daughter. The husband died about six years after the issuance of the letters testamentary upon his wife’s estate, and some two years and a half after his death the wife’s executor accounted. On the accounting the executrix of the deceased husband interposed a claim for the statutory exemptions to which the husband was entitled.
    
      Meld, that the executor having in good faith turned over the property in question to his.testatrix’s daughter, in reliance upon the husband’s declaration that he did not desire any of his wife’s estate, the claim of the husband’s executrix should be rejected.
    
      Semble, that the claim of the husband’s executrix was one founded on a statutory liability and, as such, was governed by the six years’ Statute of Limitations. (Per McLennan, P. J., and Stover, J.)
    
      Semble, that section 2724 of the Code of Civil Procedure does not change the nature of a proceeding to obtain the statutory exemptions, from that of a quasi legal proceeding to an equitable proceeding governed by the ten years’ Statute of Limitations. (Per McLennan, P. J., and Stover, J.)
    Appeal by Mary E. Cooper, as executrix, etc., of Henry Campbell, deceased, from a decree of the Surrogate’s Court of the county of Oneida, entered in said Surrogate’s Court on the 28th day of October, 190.3, judicially settling the accounts of George R. Edgerton, as executor, etc., of Elizabeth S. Campbell, deceased, and refusing to require the said George R. Edgerton to set apart to Mary E. Cooper, as executrix, etc., of Henry Campbell, deceased, the exempt property to which she claimed that Henry Campbell, the surviving husband of Elizabeth S. Campbell, deceased, was entitled.
    
      George E. Dennison, for the appellant.
    
      Theodore Avery, for the respondent.
   Stover, J.:

Letters testamentary,upon the estate of Elizabeth S. Campbell, deceased, were issued to George R. Edgerton on the 1st day of July, 1895. The deceased left her surviving a husband, Henry Campbell, who has since died, and one child, Mary J. Raymer,- of full age. During the lifetime of said Henry Campbell the executor tendered to him $150 in satisfaction of his claim to the statutory exemptions in the personal estate of his wife, Elizabeth S. Campbell, but the said Henry Campbell declined to receive said sum, stating that he did not want anything from the estate of his deceased wife.

This proceeding for an accounting was instituted on the 12th day of September, 1903. Upon this accounting it was conceded that the said Henry Campbell died on the 15th day of March, 1901, leaving a last will and testament and which had been duly probated and of which Mary E. Cooper had been appointed executrix' and was at the time of such proceeding acting in that capacity. It was also conceded that no inventory of the estate of Elizabeth S. Campbell had been filed and that the exemptions under section 2713 of the Code of Civil Procedure had never been set off, that this proceeding was the first accounting that had taken place. The following receipt was also admitted :

“Floyd, N. Y., Oct. 29, 1901.
“ Mary E. Cooper having this day delivered and turned over to me certain property heretofore in the possession of the late Henry Campbell, which I claim to be the owner of.
“(Signed) MINNIE J. RAYMER.”

Mary E. Cooper, executrix of Henry Campbell, asked for an order in this proceeding requiring the executor to set apart to her as such executrix the exempt property to which Henry Campbell, the surviving husband of Elizabeth S. Campbell, was entitled. The surrogate denied the application on the ground that the same was not made within six years after the expiration of eighteen months after the issuance of letters testamentary upon the estate of Elizabeth S. Campbell.

We think this was a liability created by statute and as such was governed by the six years’ Statute of Limitations. But it is claimed that under section 2724 of the Code of Civil Procedure, which provides, among other things, that “ The decree, made on a judicial settlement of the account of an executor or administrator, may award to a surviving husband, wife, or child, the same relief which may be awarded in his or her favor, on a petition presented as prescribed in this section,” a surrogate has power on the judicial settlement of the account of an executor to decree that such executor set apart the exemptions to which a surviving husband is entitled. The same section provides that upon the failure of an executor or administrator to set apart exempt property for a surviving husband, wife or child, the person aggrieved may present a petition to the Surrogate’s Court, setting forth the failure and praying for a decree requiring the executor or administrator to set apart the property.

The claim of the appellant is, first, that by reason of this provision the character of the proceeding is changed from that of a quasi legal action or proceeding, to an equitable proceeding, and that the ten-year Statute of Limitations, applicable to equitable actions, governs, rather than the one governing legal proceedings. But we think that this is not the fair deduction to be drawn from the two provisions of the statute. A strict rendering of the statute would confine the application to the husband, wife or child of the decedent. The provision is for their benefit and not for the benefit of their estate. The property set apart was for the sole benefit of Henry Campbell. He had a right to waive the exemption and decline to receive it, as he did. It may be that had Henry Campbell survived and within the six years had commenced proceedings to have the exempt property set apart, he might have been able to do so, but having failed during his lifetime to enforce such right or to have reduced- the property to possession, it may be well questioned whether any right survived on behalf of his executrix, and the statute nowhere gives his executrix the right to intervene upon an accounting and have the property set apart for the benefit of his estate; but it is only for the benefit of the husband, wife or children. And even were it not so, were the executrix of the husband pntitled to the benefit of the exemption under the statute, we think that her claim is subject to any and all defenses which may exist against it as.fully as though she had brought an action'at law. Section 2716 of the Code of Civil Procedure, in giving her the remedy to compel the filing of an inventory, leaves, her with a- full legal remedy for the enforcement of her claim, and, under well-known principles, without standing in a court of equity or in any forum where the law should be administered under the rules of equity. We must assume that the Legislature intended that if she had not foreclosed herself by any laches or other act or acts on her part, then she might by an accounting enforce her claim for exemption, it being assumed that in the ordinary administration of the surrogate’s office the accounting would be had within six years, and thus an opportunity would be presented to her to enforce her claim. But not having availed herself of this proceeding she mast come into the proceeding for an accounting subject to any defenses either legal or equitable that may exist against it, and the Statute of Limitations is a complete bar. If the latter section of the Code of Civil Procedure had deprived her of her other remedy so that she had ho other means of enforcing her claim, then the claim that the proceeding was one of an equitable character might be maintained, but so long as she had a complete legal remedy, viz., a direct proceeding before the surrogate to enforce her claim, there was no reason for equitable interference, nor could she avail herself of it. And again, if this proceeding is of an equitable nature, certainly it must, be open to equitable defenses. And as Henry Campbell during his lifetime had waived the provision for his benefit, and the' statute is one in favor of the husband and minor child, the petitioner as executrix of his estate has no standing in a court of equity. But equity would favor the disposition of the estate which would give to the. child of Elizabeth and Henry Campbell the property, rather than one that would transfer it to strangers or for the benefit of the estate of another.

In any view of this case, the petitioner is not entitled to the property and the decision of the surrogate was right.

McLennan, P. J., concurred; concurring memorandum by Spring, J., in which Williams and Hiscock, JJ., concurred.

Spring, J. (concurring) :

The executor states in his account that he tendered to the husband Campbell $150 in satisfaction of his claim to certain property of his deceased wife, to which he was entitled by statute;. that Campbell refused to take this money, saying that he did not desire any part of his wife’s estate. The testatrix had died in 1895 and her husband Campbell died in March, 1901. About seven months after that the executor delivered over to the daughter, Mrs. Raymer, all the property in his possession, including that to which Campbell would have been entitled. W e. think that, under the circumstances, the refusal of Campbell to receive the money, accompanied with his declaration that he did not desire any of the property, was tantamount to-a waiver of his right and equivalent to saying to the executor that he might turn over all the property to his daughter, the beneficiary. There is no imputation of bad faith on the part of the executor, and he apparently relied upon the statement of Campbell, and this evidently was acquiesced in by the present claimant because no suggestion was made of any right to. this property until the judicial settlement in 1903.

It may be, if the Statute of Limitations is not effective, that the petitioner may maintain an action against Mrs. Raymer, who has the possession of all the property, claiming to own it. (Crawford v. Wassoy, 173 N. Y. 163.) In any event the executor ought not to be made to suffer.

The decree of the Surrogate’s Court should be affirmed,

Williams and Hiscock, JJ., concurred.

Decree of Surrogate’s Court affirmed, with costs. 
      
      Sic.
     