
    In the Matter of the Estate of Aaron Perry, Deceased.
    
      (Surrogate’s Court, Rensselaer County,
    
    
      Filed April 1, 1891.)
    
    1. Executors and administrators—Accounting—Limitation.
    *'The right of creditors or next of kin of a decedent to require the executor or administrator to account is barred by the statute after thé • expiration of six years from the time when the accounting might be ordered according to § 3724 of the Code. The surety on the bond of an administrator (at least before being charged) has no greater rights or longer time to compel an accounting than other creditors.
    
      .2. Same—Waiver.
    The plea-of the statute of limitations may be interposed at any time before the evidence is in, and is not waived by the voluntary filing of an account.
    This is an application made by Charles H. Hitchcock, as administrator of the goods, etc., of Ella V. Hitchcock, deceased, for -an order to show cause why Maria Perry, as administratrix of the goods, etc., of Aaron Perry, deceased, should not render an account of her proceedings as such, and pay the petitioner the amount of his distributive share, as administrator, etc., of Eila Y. Hitchcock, deceased.
    Letters of administration upon the estate of Aaron Perry, late of the town of Lansingburgh, deceased, were on the 5th day of February, 1880, granted to Maria Y. Perry, his widow. He left him surviving his widow and children, as follows: Ella Y. Perry (afterwards married to Charles H. Hitchcock), and Clarence A. Perry, both of full age. Ella Y. Hitchcock died October 12, 1888, intestate, and letters on her estate were issued to her husband, November 7, 1883. No inventory was ever filed of the estate of Aaron Perry.
    June 4, 1890, Charles Hitchcock filed a petition in this court to compel a settlement of the account of Maria Y. Perry, as administratrix. On the 8th day of July, 1890, said Hitchcock filed an amended petition in behalf of the estate of Ella Y. Hitchcock as one of the sureties of Maria Y. Perry on the grant of administration to her, for the same relief On the return day of the citation the said Maria Y. Perry as administratrix, etc., filed her account, but at the same time answered the petition, and set up the defense of payment of the claim or share of petitioner’s intestate in the estate of Aaron Perry, deceased; and further answered that the remedy of the petitioner, either as next of kin or ■surety was barred by lapse of time since her liability as administratrix to account had accrued.
    The proceeding was commenced by the filing of the petition June 4, 1890. Code, § 2517.
    
      King & Ashley (Charles E. Patterson, of counsel), for petitioner; McClellan & McClellan, for Maria V. Perry, administratrix, etc.
   Lansing, S.

The principal question in this case is whether the statute of limitation has run upon the right of the next of kin of said deceased to require the administratrix herein to account and pay the distributive share, if any, alleged to be due the petitioner’s intestate as such next of kin.

Up to the enactment of the Code, and even prior to the Be vised Statutes, Borst v. Corey, 15 N. Y., 505-509, it was settled that the statute of limitations began to run as soon as the right to compel an accounting had accrued. This was originally fixed at one year, and subsequently eighteen months, from the time letters were issued upon the estate of the deceased. Clark v. Ford, 1 Abb. Ct. App. Dec., 359; McCartee v. Camel, 1 Barb. Ch., 455; Clock v. Chad eagne, 10 Hun, 97; Smith, v. Remington, 42 Barb., 75; Dayton on Surrogates, 515.

This was not by reason of any statute upon the subject, but because originally by rule of equity, ahd. subsequently by statute it was provided that where there was a concurrent jurisdiction at law and in equity and in the surrogate’s court (when the same jurisdiction was extended to it) for the collection of debts, legacies and distributive shares, that the statutory -limitation applicable in such actions at law govern the institution of like proceedings in equity and in the surrogate’s court 2 R. S., 301, § 49; id., 114, § 9 ; id., 116, § 18; Kane v. Bloodgood, 7 Johns. Ch., 90, 114; McCartee v. Camel, supra.

Although the relation of an administrator to a distributee is; quite analogous to the relation of trustee and cestui que trust, in which case no lapse of time will bar the claim of 'the cestui que trust, Murray v. Coster, 20 Johns., 576, yet it differs in this, that it is not a direct, express or continuing trust, which is solely cognizable in a court of equity.

Indeed the relation is more akin to that of bailment where the property is held under a contract, obligation or liability, express or implied.” But whatever may be the distinction between the relation of an administrator to the next of kin and of a trustee to-his cestui que trust, it is conclusively settled by repeated adjudications that proceedings for an accounting against an administrator in the surrogate’s court are not exempt from the operation of the statute of limitations.

But the important question which remains is as to the effect of the enactment of the Code of Civil Procedure upon the statute of limitations relative to a compulsory accounting in the surrogate’s court. There has not been entire uniformity of decision by the courts upon that subject since the adoption of the Code of Civil Procedure.

Section 1819 is relied upon to sustain the position that a new rule of limitation has been established by the Code of Civil Procedure, not in direct terms, but by necessary implication upon the subject of an accounting in surrogates’ courts. This section is a part of title 3, chap. 15 of the Code of Civil Procedure. The title is declared to refer to “ actions relating to the estate of a decedent.”

And the first article of the title in which § 1819 occurs is stated to be “ in regard to an action by or against an administrator.”

It will be observed that there is nothing said about special proceedings in this section, nor is it by any provision made applicable to them. The whole title relates to actions only, and the section itself provides for maintaining “ such action ” under certain conditions. The very terms of the section seem to us to preclude the construction that it was intended to embrace special proceedings.

The provision of that section in substance is that the statute of limitations, in respect to actions for the recovery of legacies and distributive shares, shall only begin to run when the executor’s or administrator’s account is judicially settled.

It would seem that the effect of construing this section as applicable to special proceedings in surrogate’s courts would be not to furnish a uniform rule of limitations applicable alike to actions •and special proceedings, but would result in a relegation of such , proceedings to the rule of limitation, if any, arising from presumption of payment; viz.: that after the expiration of twenty years from the time when an action might have been brought or proceedings instituted, the court will presume payment.

We do not think the legislature intended any such result.

But we are not left to reason alone as to the proper construction ■of this section, for the supreme court at general term in the Matter of Van Dyke, 44 Hun, 394; 9 N. Y. State Rep., 137, in a well considered opinion by Mr. Justice Daniels, has decided that this section (1819) applies only to actions. This decision has been followed by numerous adjudications in the surrogate’s Court. Matter of Dunham, Coffin, Sur. (1889); 1 Conn., 321; Matter of Clayton (Bansom, Sur.), id., 444 ; 22 N. Y. State Rep., 886 ; Matter of Nicholls, 23 Abb. N. C. (Potter, Sun), 479; 27 N. Y. State Rep., 37.

Again the distinction between civil actions and special proceedings is recognized throughout the Code and especially by § 414 ■of the Code of Civil Procedure, which provided: “ That the provision of this chapter (entitled limitations for the time of enforcing a civil remedy) apply and constitute the only rule of limitations applicable to a civil action or a special proceeding,” except where otherwise expressly provided.

It is manifest, therefore, that there was no intention on the part •of the legislature to have § 1819 apply to special proceedings, for it is not so expressly provided or necessarily implied therein. We must look elsewhere, therefore, for the rule of limitation applicable to the institution of such proceedings in the surrogate’s court.

Section 414 requires the word “ action ’’ to be construed, when it is necessary to do so, as including a special proceeding. And the same section also declares that chap. 4 contains the “only limitation applicable to special proceedings.” As the proceeding in this case before the surrogate is concededly a special proceeding, we now turn to § 382, chap. 4, subd. 1, and find in effect the rule that proceedings to enforce an account should be commenced within six years after the right to require it has accrued; for this is a proceeding to “ enforce an obligation or liability not arising from a judgment or sealed instrument;” either this or subd. 2 of the same section, relating to a “liability created by statute,” must include the case of a proceeding against an administrator for an accounting in the surrogate’s court.

Then turning to § 2724 of the Code, we find that an administrator may be required'to submit to the judicial settlement of his accounts after the expiration of one year from the time the letters were issued to him. The obligation to account, therefore, accrues at that time; and under the provision of § 382 above referred to the right to require an accounting will be barred after the expiration of six years from the time when the accounting may be ordered according to § 2724. It follows, therefore, that the statute had'run upon the right to compel an accounting by the administratrix before the petition herein was filed.

Although this construction of these several sections (1819, 414 and 382) will result in producing different periods of limitation, one in law and in equity and another in the surrogate’s court, for the enforcement of the same obligation (which we are not quite sure the legislature contemplated), still it may be stated that these sections are not inharmonious ; for § 1819 provides that the action mentioned in it should not be commenced until an accounting had taken place; while §§ 414 and 382 provide fori the time within which the accounting must be had, in order to avoid the effects of a statutory limitation upon the accounting.

We have carefully examined all the cases cited and the provisions of the present Code referred to by the learned counsel for the petitioner in his able brief in support of his contention ; and while it must be conceded that the course of legislation prior to’ the present Code indicated a design upon the part of the legislature of having the same limitation apply to an action and a special proceeding, yet, notwithstanding the legislature has by direct provision in the present Code changed and greatly extended the period of limitation for the institution of actions of the character herein considered, we cannot agree that there is any provision of the Code which directly or by necessary implication warrants the conclusion that the period of limitation within which to institute proceedings for the collection of legacies or distributive shares in the surrogate’s courts has been extended or that the former law upon the subject has been in any manner changed.

Another question suggested for consideration is that of waiver. In this case the administratrix voluntarily filed an account; but at the same time by her answer she set up the statute of limitations. The question of waiver, therefore, becomes merged in the question as to what stage of the proceeding the statute of limitations may be interposed. It has been repeatedly held that it may be set up at any time before all the evidence is in, so that the claimant may have an opportunity to contest the same by proofs which may relieve him from the operation of the statute. Clock v. Chadeagne, supra ; Smith v. Remington, supra ; McCartee v. Camel, supra ; Matter of Clayton, supra.

The remaining question involves the character of the party who institutes the proceedings. It is suggested that the twenty years limitation, § 381, should apply, if at all, to a proceeding where the same was instituted by a surety upon the bond of the administratrix, or at least that the right given a surety under § 2726, Code of Civil Procedure, to require an accounting is not barred by any other statute or rule.

If this proceeding was based upon the bond upon which the petitioner’s intestate, Ella V. Hitchcock, was surety, assuming it-to be in the usual form, this claim would be plausible, as the bond doubtless provides that an administratrix should obey the decree of the surrogate; and he is authorized to require her to account. But the duty to account does not rest on that obligation. It exists independently of any contract liability. The surety will doubtless rest under liability in a proper case for the debts or defaults of his administrator for twenty years. Still it does not follow that distributees or legatees may avail themselves of this extended liability of the principal (the administratrix) or her sureties so as to maintain those proceedings to account in the surrogate’s court after the expiration of six years; nor can the surety (at least before being charged) have any greater right or longer time within which to compel an accounting in that court than any other creditor. Matter of Nicholls, supra. In the latter case this very question, the right of a surety to compel an accounting, was before the court and decided adversely to the petitioner’s contention.

The petition is dismissed, therefore, unless the petitioner shall desire to offer evidence of facts which will avoid the statute of limitations applicable to this proceeding; in which case the hearing may proceed upon that issue. Matter of Underhill, 1 Conn., 314.  