
    Flynn v. Diefendorf.
    
      (Supreme Court, General Term, Fourth Department.
    January 19, 1889.)
    Executors and Administrators—Allowance oe Demands—Limitation.
    Under Code Civil Proc. N. Y. § 1833, providing that one holding a disputed claim against a decedent’s estate must commence an action thereon within six months after it is rejected by the executor if the claim is due, or, if not, within six months after, it becomes due, or in default thereof he shall be barred from any remedy against the estate, such an action is barred by failure to bring the action within the prescribed time, though after it has elapsed the creditor and executrix enter into a written agreement to refer the claim, as a personal representative has no power to revive a claim against the estate of his decedent after the remedy thereon is barred.
    Appeal from special term, Oswego county.
    Action by Samuel Flynn, assignee of Rufus Diefendorf, against Cornelia A. Diefendorf, executrix, etc., of John H. I. Diefendorf, deceased, upon a claim against the estate of said testator. Judgment entered by direction of the special term on the referee’s report in plaintiff’s favor, and defendant appeals.
    
      Avery & Merry, for appellant. Howe & Mice, for respondent.
   Kennedy, J.

The only question presented on this appeal is whether the right of recovery upon the demand of the respondent, and for which the judgment was ordered, was barred by the provision of section 1822 of the Code of Civil Procedure. The facts are as follows: The defendant was duly appointed executrix of the estate of John H. I. Diefendorf some time in 1882. The 22d day of March, 1883, said executrix, by order of the surrogate of Oswego county, duly advertised for the presentation of claims, and continued the same down to September 28, 1883. On the 22d day of September, 1883, the plaintiff served upon her a written claim against the estate, duly verified, and which was then all due, and apparently barred by the six-years statute of limitations. On the 22d day of October, 1883, the defendant served on him a written notice that she disputed and rejected the claim. The matter continued without any action or proceeding on the part of the plaintiff to collect, nor were any negotiations between the parties in relation thereto had until March 2, 1885, when the parties entered into a written agreement, in form as provided by statute, to refer the same. This was approved by the surrogate of Oswego county, and on the 5th day of March, 1885, an order was entered in the supreme court, referring the matter in pursuance of said agreement. The case was brought on and tried, and on July 25,1885, said referee made his report, finding there was due and owing to the plaintiff from said estate $1,948.31. Exceptions were filed to the same, and on plaintiff’s motion the report was confirmed, and judgment ordered for said sum, with costs against the estate.

The contention by the appellant is that at the time said agreement to refer the claim was entered into by said executrix the same was barred by the short statute of limitations, and that she, as representative, could not revive the same as a debt against the estate to the prejudice of the creditors, heirs to the estate, or beneficiaries under the will. This claim is based upon section 1822 of the Code of Civil Procedure, as follows: “When an executor or administrator disputes or rejects a claim against the estate of the defendant, exhibited to him either before or after the commencement of the publication of notice requiring the presentation of claims as prescribed by law, * * * the claimant must commence an action for the recovery thereof against the executor or administrator within six months after the dispute or rejection, or, if no part of the debt is then due, within six months after a part thereof becomes due; in default whereof he, and all persons claiming under him, are forever barred from maintaining such an action thereupon, and from every other remedy to enforce payment thereof out of the decedent’s property.” We think the appellant is right in her position. The provisions of the statute quoted are not doubtful in expression or difficult of construction. When a claim against the decedent is presented, and the same is disputed or rejected by his personal representative, if it is not referred within six months thereafter, or an action is brought by the claimant to recover it in that time, he is forever barred from maintaining such action, and from every other remedy to enforce the same out of the decedent’s estate. The executor holds the estate of his testator in trust for his creditors and for his beneficiaries. After a debt or claim presented as existing against the same has been paid or in any other manner discharged as an obligation in fact against the estate, the executor or administrator has no power voluntarily to renew it and reinstate it to the prejudice of the parties interested. The construction which the court below gave the statute, it seems to us, is dangerous as a power to confer upon a simple agent, and is in conflict with the fair interpretation of the intent as expressed in the act.

Judgment was ordered against the estate of the deceased, because the executrix had entered into an agreement to refer, notwithstanding the six-months limitation of the statute, eighteen months after the claim was rejected, and twelve months after it ceased to have any validity or legal existence as a demand against the estate; that such agreement served to revive the claim, and restore it as an existing obligation; that the bar the statute provides does not depend upon the omission of the parties to refer or the claimant to bring his action within six months from the dispute or rejection of the claim, but instead was simply contingent upon the question whether the reference had at any time been agreed upon, although the same was made after the expiration of the limitation. If this construction shall be given the statute, it will be in the power of an executor or administrator, at any time during his official life, to revive any claim which may have been presented, however remote from the time of its rejection, and subject the estate to the contingency of its payment, notwithstanding the law had before pronounced it discharged. It is held in Selover v. Coe, 63 N. Y. 439, under a preceding statute similar to the above, “when a creditor has presented his claim, and the claim has been rejected, and six months have elapsed without bringing an action to enforce the same, that this is a defense, not only to an action against the personal representatives of the deceased, but also to an action brought to enforce the same against the heir at law.” In Cornes v. Wilkin, 79 N. Y. 129, it is held that an offer to refer by the personal representative, made within six months after the claim was rejected by him, did not prevent the operation of the short limitation upon it. The law is settled that a personal representative cannot, by any act of his, restore a claim against the estate he represents which is barred by the six-years statute of limitations. Bucklin v. Chapin, 1 Lans. 443; Bloodgood v. Bruen, 8 N. Y. 362; McLaren v. McMartin, 36 N. Y. 88; In re Kendrick, 107 N. Y. 108, 13 N. E. Rep. 762. These cases seem to me analogous, and the rule alike applicable to each. While the executor may enter into the agreement to refer, such agreement does not restore the demand, and, the limitation having run, the same may be interposed as a defense upon the trial.

■ The respondent cites Bank v. Speight, 47 N. Y. 668, in support of the doctrine contended for by him. The case does not aid him. The claim was presented on the 9th of February, 1869; the personal representatives proposed and agreed in writing to refer the claim; and a referee was named therein on the 20th day of February, 1869. No order of reference was entered. Negotiations were conducted between the parties, looking to a settlement down to the 18th day of August, 1869, when the defendant informed the plaintiff that the six months had expired since the claim was rejected, and he would not pay. The court held that the short statute was not available to defeat the claim, upon the ground, principally, that the defendant, the executor, was by his own act estopped from availing himself of the defense. The principle of an equitable estoppel was directly in the case. In this no sucli question arises. The ease of Hoyt v. Bonnett, 50 N. Y. 538, holds tne statute penal in its character, and that it must be strictly construed. This principle does not aid the plaintiff, since, as we view the case, it is free from all extraneous matter at all affecting the application of the statutory provisions, as they exist, to it, and leaves it to stand upon the naked proposition as to whether, after the demand ceased as a claim against the estate, the personal representative can enter into an agreement to refer, and whether such agreement, if made, has the effect to revive the claim. We think, both upon principle and upon the authorities, no such effect can be given to the agreement. Judgment reversed, and a new trial granted before another referee; costs to abide the event. All concur.  