
    Chauncey S. Butler and George H. Butler, Appl’ts, v. Julia A. Johnson, ex’rx, etc., of William P. Johnson, deceased, and individually, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July, 1886.)
    
    1. Statute of limitations—When heir or devisee mat set it up ln PROCEEDINGS FOR THE SALE OF REAL ESTATE UNDER THE DECREE OF A SURROGATE.
    The testator of William P. Johnson, at his death in 1871, was indebted to certain persons, clajms for which debts were presented to the executrix, in pursuance to the published notice, and accepted by her. ' These claims not being paid were sued and judgment obtained against the executrix. The debts of the testator exceeded the. value of the personal property left by him, but he left real estate valued above incumbrances at $110,000. In March, 1882, the residuary legatees and devisees divided the estate between them. To one of them, M, J. B., was conveyed the land in question, together with other land, she having conveyed to the others the remainder of the estate, said others agreeing to pay all the liabilities of the estate. The plaintiffs in this action acquired title to the real estate in question by conveyance from M. J. B., and had purchased with knowledge of the situation of the estate. In 1881 the surrogate, on petition, decreed that all of the unpaid debts and the unpaid legacy should be paid by the executrix and M. J. B. out of the assets in their hands. M. J. B. appealed from the surrogate’s decree, and it was reversed as to her, but remained in full force as to the executrix, she not having appealed. In 1883 the executrix advertised to sell the premises in question (which had been acquired by plaintiffs as aforesaid from M. J. B ) to satisfy the debts of her testator and the decree of the surrogate aforesaid. This action was then commenced to perpetually enjoin the executrix from selling. XLeld, that the executrix acquired no power to sell the land under the surrogate’s decree; that her power to sell is derived solely from the will; that over ten years having elapsed between the probate of the will and the date of the advertisement under which the executrix attempted to sell, the statute of limitations had run against these claims and that the devisees could plead it against them, notwithstanding the fact that the judgment had keen recovered upon them against the executrix.
    2. Same—When plaintive can plead it.
    The plaintiffs being in possession of the land, claiming to own it, and the defendant having begun proceedings which, if concluded, would at least cast a cloud upon plaintiffs’ title, the statute of limitations may be used by the plaintiffs, the action being strictly in defense of their title.
    3. Same—When it begins to bun against legatee under 2 Rev. Sta„t., 114, § 9—Code Civ. Pbo., § 1819, not applicable '
    The right to recover a legacy accrues within one year after the issuing of letters testamentary, at which date the statute of limitations began to run, under 2 Rev Stat., 114, § 9. Section 1819 of Code of Civil Procedure is not applicable to this case, as it did not take effect until more than two' years after the right to recover this legacy had been barred. Shannon v. Howell, 36 Ilun, 47, distinguished
    4. Same—When mat be interposed bt heirs.
    The statute of limitations runs against the execution of a mere power in trust and may be interposed in favor of an heir or devisee.
    Appeal from part of judgment entered upon a trial at the special term, Otsego county.
    The executrix of the will of William P. Johnson had advertised certain land for sale, under a decree made by the surrogate, and this action was commenced for a perpetual injunction restraining the sale of the premises by the executrix.
    The testator was indebted at his death, in 1811, to three certain persons to an amount aggregating $1,500. The executrix, in 1812, advertised for the presentment of claims against the estate, and these three claims were presented and accepted-by the executrix. The testator left debts amounting to about $10,000 over and above the value of his personal property, but left real estate valued at $110,-000 over and above all his debts and liabilities. The three debts mentioned above not being paid, suit was brought against the executrix and judgment recovered against her in 1811, and these three judgments were assigned to the same person. By one of the codicils to the testator’s will,, a legacy of $1,500 was given to Emma J. Darrow, which had never been paid. All the debts and legacies have been paid except those before mentioned, and some incurred by the executrix in managing the estate. By the will the residue of the estate, after paying the legacies and providing for the trusts provided in the will, was divided between George Tunnicliff, Mary J. Butler, Harriet H. Carey and Louisa A. Blake.
    In 1881, Emma J. Darrow filed a petition in the surrogate’s court, in which petition B., who held the assignments , of the three judgments aforesaid, joined, asking for an order that the debts and legacy be paid. The surrogate made a decree that all the debts and legacy be paid by Julia A. Johnson, the executrix, and Mary J. Butler out of the assets in their hands. Mary J. Butler had this decree reversed as to her on appeal, but the executrix did not appeal.
    In 1882, the residuary legatees and devisees divided the estate, by which division Mary J. Butler received, together with other lands, the land in question, as her share, and conveyed to the other three persons named, as joint legatees heretofore, the remainder of the estate, they agreeing to pay all liabihties of the estate. These three persons are insolvent.
    The plaintiffs in this action acquired title to the land in question by a conveyance from Mary J. Butler, and purchased with knowledge of the situation of the estate, therefore they are not purchasers in good faith.
    In 1883, the executrix, who is defendant herein, advertised these premises (acquired from Mary J. Butler) for sale, to satisfy the debts and pay the legacy, and the plaintiff thereupon commenced this action to perpetually enjoin her from so doing.
    
      F. G. Finche, for appl’ts; James A. Lynes, for resp’t.
   Follett, J.

The defendant acquired no power to sell the land under the surrogate’s decree, her power to sell is derived solely from the will. Ten years, seven months and twenty-three days elapsed between the probation of the will and the date of advertisement under which she attempted to sell. As against the devisees, the statute of hmitations had run as against these claims, notwithstanding the fact that judgment had been recovered upon them against the executrix. Sharp v. Freeman, 9 Lans., 171; affirmed, 45 N Y., 802; Raynor v. Gordon, 23 Hun, 264. The statute (2 R. S., 101, 102, § 10) permits a devisee, as well as an heir, to plead the statute of limitations against claims for the payment of which land is sought to be sold by proceedings under the statutes. Such also is the rule under the Code of Civil Procedure (§ 2755). It is clear that in the face of the statute of limitations the land could not, after this lapse of time, have been sold under the statute-authorizing the sale of land for the payment of debts.

It was held in Butler v. Bloomfield (MS. op., gen. term, third dept., May, 1882, Appeal Book, p. 96), that the executrix did not take the fee under the will, but that the fee passed directly to the residuary devisees, subject to the execution of the power in trust to pay debts and the legacy, if the legacy is a charge, and that there was no equitable conversion of the real estate into personalty. The statute of limitations runs against the execution of a mere power in trust, and may be interposed in favor of an heir or devisee. Dickinson v. Teasdale, 31 Beav., 511; affirmed, 1 De Gex, J. & S., 52; Coope v. Cresswell, Law Rep., 2 Ch. App. Ca., 112.

The more serious question is, whether the defendant could, as against the devisees, voluntarily execute the power of sale for the payment of claims which creditors ' could not enforce by reason of the lapse of time. The learned justice who decided this case at the special term held that the plaintiffs were not entitled to a decree restraining the sale, because the statute was designed as a shield and could not be invoked in aid of affirmative relief. Without questioning the correctness of the general rule laid down, we think it was misapplied in this case. The plaintiffs were in possession of the land, claiming to own it. The defendant had begun a proceeding which, if concluded, would at least cast a cloud upon plaintiffs’ title. This action is prosecuted strictly in defense of the plaintiffs’ title, seeking no affirmative relief as such against the defendant, except to prevent her from clouding their title. Suppose a statutory foreclosure of- a mortgage be commenced, all rights of action upon which are barred by the statute, would the owner of the fee be compelled to he by and permit his title to be clouded by a sale and defend an action of ejectment brought by the purchaser % We think not. The statute of limitations may be used defensively by a plaintiff when, as in this case, he is without an adequate legal remedy.

Emma Jane Barrow’s right to recover her legacy accrued June 28, 1872, one year after issuing letters testamentary (2 R. S., 114, § 9), at which date the statute of limitations began to run upon her to recover the legacy by an action at law, or by a proceeding in the surrogate’s court; and when defendant advertised the land for sale, February 21, 1883, the statute had been running ten years, seven months and twenty-three days, and her right to recover the legacy was barred. McCartee v. Camel, 1 Barb. Ch., 455; Smith v. Remington, 42 Barb., 75; American Bible Society v. Hebard, 51 id., 552; affirmed, 41 N. Y., 619, note; Clark v. Ford, 1 Abb. Ct. App. Dec., 359; S. C., 3 Keyes, 370; S. C., 34 How., 478; Loder v. Hatfield, 71 N Y., 92. Section 1819 of the Code of Civil Procedure, providing that the statute shall not begin to run until the executor’s account is judicially settled, did not take effect until September 1, 1880, more than two years after the right to recover the legacy had been barred, and it is not applicable to this case. Code Civil Pro., § 3352.

The question arising over this legacy is not governed by ' Shannon v Howell (36 Hun, 47), for the reason that the legatee had the right to compel the payment of the legacy at any time within one year after the letters were issued; while in the case cited, no person had become liable to pay the legacies when the assignee of the legatees sought to sell the land upon which the legacies were expressly charged. In that case the legatees had not concurrent remedies.

Any person interested in an estate as heir, devisee, legatee or creditor may, without the concurrence of the executor, interpose the statute of limitations as a defense to a claim brought against the estate. Partridge v. Mitchell, 3 Edw. Ch., 180; Shewen v. Vanderhorst, 1 Russell & Mylne, 347; Kendrick's Estate, 15 Abb. N. C., 189; S. C., 3 Dem., 301; Warren v. Paff, 4 Bradf., 260; Sharp v. Freeman, supra.

The judgment should be reversed and a new trial, ordered, with costs to abide the event.

Hardin, P. J., and Boardman, J., concur.  