
    Mary J. Adams, Resp’t, v. Maria A. Fassett et al., App’lts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed December 8, 1893.)
    
    Limitation—Action against devisees on debtor.
    Plaintiff was a creditor of F, who died October 1, 1884, leaving a last will and testament devising land, his only property, to defendants. The will was admitted to probate May 31, 1891, and letters of administration with the will annexed were issued January 20, 1892; this action against the heirs and devisees was begun February 10, 1892, defendants plead the-statute of limitation; the court awarded judgment in favor of plaintiff and declared the same to be a lien on the real property left defendants. Held, that the judgment should be affirmed.
    Appeal from a judgment entered in Jefferson county on the 12th of June, 1893, on the decision made by the special term held in that county. Plaintiff was a creditor of John Fassett, deceased, who died October 1, 1884, leaving a last will and testament devising lands to the defendants which are described in the complaint. The answer of the defendants contains several denials and then states as follows: “ allege that the said several supposed causes of action therein set forth did not, nor did any or either of them, accrue at any time within six years next before the commencement of this action, nor within six years and such additional time as is allowed to the plaintiff for the commencement of this action by reason of the death or the failure to issue letters testamentary on the will of John Fassett, deceased.” The will of John Fassett was admitted to probate May 31, 1891, and letters of administration with the will annexed were issued to Maria A. Fassett, January 20, 1892, and this action was commenced the 10th of February, 1892. It is found as a fact that the assets of the deceased were not sufficient to pay plaintiff’s debts and that she “ will be unable with due diligence to collect her debt by proceedings in the proper surrogate’s court, or by an action against the administrator with the will annexed, or legatees or next of kin of said deceased ” ; and that the deceased left “no real estate which descended to his heirs.” It is found as a fact viz : “ That prior to the death of John Fassett the interest was paid on said notes annually by said testator or his son Milan as his agent in his (testator’s) behalf and indorsed thereon, the last indorsement prior to his decease being dated June 2, 1884, and August 5, 1884, on said notes respectively.” The court awarded judgment in favor of the plaintiff for the amount of the notes “ and declaring the same to be a lien upon and collectable out of the réal property described in the ■complaint, with costs, such recovery to be apportioned in the manner prescribed by law between the defendants according to the value of their several devises.”
    _ Brown & Adams, for app’lts ; Rogers & Atwell, for resp’t
   Hardin, P. J.

Section 1843 of the Code provides that “Devisees of a testator are respectively liable for the debts of the decedent arising by simple contract, or by specialty, to the extent of the estate, interest and right in the property which * * * was effectually devised to them by the decedent.”

In Read v. Patterson, 134 N. Y., 130; 45 St. Rep., 793, the history of the legislation leading up to the enactment of § 1843 of the Code is given, and at page 136 of the opinion, it is said that it is quite apparent that § 1848 of the Code enlarges the rights of creditors by permitting recoveries “ when it appears that the creditors will be unable with due diligence to collect their debts by proceedings in the proper surrogate’s court and by action against the executor or administrator.” The defense of the statute of limitations interposed must fail if we follow Mortimer v. Chambers, 63 Hun, 342; 43 St. Rep., 365, and the cases there cited. See also Hulbert v. Clark, 128 N. Y., 295; 40 St. Rep., 401 ; Code, § 388; Mead v. Jenkins, 27 Hun, 573 ; S. C., aff’d 95 N. Y., 31; Malloy v. Vanderbilt, 4 Abb. N. C., 130.

(2) The essential facts found by the trial judge seem to be supported by the evidence.

Judgment affirmed, with costs.

Merwin, J.

I concur in affirmance.

Martin, J.

The evidence that the interest was paid on the debt or notes which were the basis of this action by the testator or for him up to 1884, was not as full and complete as might be desired. That the interest was paid there is no doubt. But that it was paid by or for the testator is not so clear. Still, I am disposed to think that it was sufficient to sustain the finding of the court upon that question. Hence, in considering whether this action was barred by the statute of limitations, the statute must be regarded as having commenced to run in 1884.

The trial judge held that the action was not barred, as it was governed by § 388 of the Code, and could be brought within ten years after the statute commenced to run. The cases of Wood v. Wood, 26 Barb., 356 ; Salisbury v. Morss, 7 Lans., 359; aff’d 55 N. Y., 675, and Mortimer v. Chambers, 63 Hun, 335; 43 St. Rep., 365, sustain that conclusion.

If, however, the ten years’ limitation was not applicable and the action was controlled by § 382, which provides that the actions herein mentioned, shall be brought within six years, still, the action was not barred. Section 406 provides that where the commencement of an action has been stayed by statutory prohibition, the time of the continuance of the stay is not a part of the time limited for the commencement of an action. By referring to § 1844, it will be seen that this action could not have been brought until after three years had elapsed since the death of the decedent. Thus the action was stayed, by statutory prohibition for the period, and the three years during which it was thus stayed was not a part of the time limited for its commencement. Hence, the plaintiff in effect had nine years from the time of the last payment within which to bring this action. Mead v. Jenkins, 27 Hun, 570; S. C., 29 id., 253; Mortimer v. Chambers, 63 id., 344; 43 St. Rep., 365; Malloy v. Vanderbilt, 4 Abb. N. C., 127, 130.

1 think the judgment should be affirmed.  