
    Matter of the Estate of Regina Rothschild, Deceased.
    (Surrogate’s Court, New York County,
    December, 1903.)
    Compulsory accounting — Defense of the Statute of Limitations — Duties of a referee appointed by the surrogate — Evidence.
    Where one of the next of kin of a decedent takes a proceeding to compel her administrator to account for money or property of the decedent alleged to have been received by him, he may interpose the defense of the Statute of Limitations at any time before the close of the evidence and need not interpose it in a formal manner.
    Where the next of kin alleges that the administrator was indebted to the intestate in a fiduciary capacity at the time of her death, a referee, appointed by the surrogate to inquire into the necessary jurisdictional facts and examine the account filed and the objections filed to it and determine all questions the surrogate could determine, should not confine the proof of the next of kin to matters bearing on the defense of the statute first interposed on the hearing and dismiss the proceeding, upon deciding the statute to be a bar, as it is his duty to determine whether, upon all the facts proved before him, the administrator is legally chargeable with any sum of money.
    Relief against one obtaining property as an administrator should not be denied because the statute is alleged to have run against the claim unless all the facts upon which the running might depend are clearly shown.
    It is erroneous for the referee to exclude a question put to the administrator: “Did you ever receive any property or money of your mother’s estate not embraced in this account now before the referee.”
    Proceedings upon an accounting By an administrator. Exceptions to the report of the referee.
    Max Almyer ('Charles H. Beckett, of counsel), for administrator.
    Gilbert W. Minor, for contestant.
   Thomas, S.

A proceeding was duly commenced on a petition of one of the next of kin of the decedent, against the administrator to compel an accounting. On the return day of the citation, the attorneys for the petitioner and for the administrator both appeared; no objection to the granting of the relief w-as suggested, and, thereupon, an order was made by the surrogate that the administrator file his accounts, as such, within two weeks thereafter. This order was obeyed, and an account was filed in which the administrator admitted the receipt of assets amounting to $288.19, and alleged that he had made disbursements amounting to $843.11. Objections were filed-by the next of kin in which it was charged, among other things, that the administrator was, at the time of the death of the decedent, indebted to her in amounts exceeding $10,000; for moneys received by him from her in a fiduciary capacity. 'An order was thereafter, on July 30, 1903, made by the surrogate by which it was referred to a referee “ to inquire into the necessary jurisdictional facts, to examine said account and objections and to hear and determine all questions arising upon the settlement of said account which the surrogate has power to determine.”

On the first hearing before the referee the administrator was sworn and was examined by counsel for the objectant as to certain transactions had by him with the decedent, but such examination was not concluded when an adjournment was had.

On the adjourned day another counsel appeared for the accountant, who offered an answer “ to the petition ” of the next of kin on which the proceeding was instituted, and also “to her objections to the -account,” and this answer was received and filed over the objection of the next of kin. The defense set up in this answer was, in substance,, that the proceeding and all remedies of the objectant were barred under the six years’ Statute of Limitations and also under the ten years’ statute. An application was then-made to dismiss the proceeding, which was denied by the referee, but he determined that the letters of the administrator having issued September 3, 1889, nearly fourteen years before the commencement of the proceeding, it was competent for the next of kin to offer proof tending to rebut the inference that her rights were barred under the statute, and he refused to permit any evidence offered "by her which he did not regard as bearing upon this issue. Under this ruling various further questions were put to the administrator by counsel for the next of kin, which were all excluded.

The report of the referee is, in brief, that the Statute of Limitations is a bar to the proceeding and to the objections of the next of ¡kin; that the objections to the account should be dismissed, and that the account filed by the administrator should be stated as correct by an appropriate decree. Exceptions to all of these conclusions were filed by the next of kin.

It was not referred to the referee to determine whether the surrogate acted improvidently or improperly in making the order directing the filing of the account. In order to procure the dismissal of the proceeding or defeat the application for the filing of the account, the administrator should have answered on the return of the citation, setting up the bar of the statute, and the issue thus raised would then have been dealt with by the court. Failing this, the order to file the account was a proper exercise of the power of the court, and it is not within the province of the referee to reverse it or to set it aside. If all of the facts disclosed by the answer had been before the court, it is not clear that the order would not have been granted. In Matter of Irvin, 68 App. Div. 158, 162, Laughlin, J., writing for the court, said: “Upon a proceeding of this nature it is not proper to deny the relief upon the ground that the Statute of Limitations has run against the remedy unless all the facts upon which the running of the Statute of Limitations might depend are clearly shown. A person obtaining possession of property as executor should not be permitted to acquire title thereto by failure of those interested to require him to account unless there is no avenue of escape from such an inequitable result. If there be any doubt about the facts, the better practice is to grant the order. The facts may be clearly shown on the account filed pursuant to the order or on the proceedings subsequently had thereon. This seems to have been the primary purpose of the enactment. The application, of the Statute of Limitations may then he determined more satisfactorily when it is sought to enforce some right based on the accounting.”

The question as to whether the administrator was protected by the statute from an obligation to account for and pay over moneys was included within the issues referred to the referee. Ho provision of law required or permitted the administrator to make any written reply to the objections and, therefore, all proper defenses were permissible to him, including the Statute of Limitations. It was proper for him to point out and insist upon the statute, either orally or in writing, and that at any stage of the proceeding before the close of the evidence. Matter of Chadeagne, 10 Hun, 97. The referee, therefore, acted properly in receiving the answer and treating it as filed.

The duty imposed on the referee was not to determine whether the proceeding had been duly initiated, but whether, on all of the facts proved before him, the administrator was legally chargeable with any sum of money. The Statute of Limitations was not waived by the administrator by his obedience to the order requiring him to account, and it was entitled to due consideration.

It was competent for the referee to control the order of proof and, if all of the facts establishing the contentions of fact as to the matters charged in the objections were fully proved or fully admitted, he might properly require the objectant to confine his further proof to matters tending to remove the bar of the statute. This power should, however, be exercised with extreme caution, for if proof necessary to establish the objections is then found lacking, the objectant may safely urge upon appeal that he was prevented from supplying the omission. In the present case it is alleged that the administrator held funds of the deceased as a trastee for her, but when the objectant was prevented from further offering evidence,' it is doubtful whether the proof established anything more than a debt. Budd v. Walker, 113 N. Y. 637. If a decision must now be made as to the force of the statute, the fact of the existence of the trust relation would have to be assumed. On the further hearing, which will now be ordered, a fuller presentation of the facts should be permitted.

One of the questions put to the administrator and excluded by the referee was: “Did you ever receive any property or money of your mother’s estate not embraced in this account now before the referee? ” The remedy of the petitioner to require the administrator to account for money or property received by him did not - accrue until that money or property was so received, and it was error to refuse to require the witness to answer this question. Matter of Post’s Estate, 7 N. Y. Supp. 438; Matter of Coman, 47 Hun, 639.

The exceptions to the report of the referee are sustained, and the matter is remitted to him for further hearing and report.

Exceptions sustained, and matter remitted for further hearing and report.  