
    In the Matter of the Estate of Mary T. McConihe Kellogg, Deceased.
    
      (Surrogate’s Court, Rensselaer County,
    
    
      May, 1911.)
    Executors and Administrators—Collection of Assets—Remedies and Procedure—Discovery and Surrender of Assets—Time to Institute ; Dismissal ; Decree.
    Where, in a proceeding for the discovery of a diamond ring and a gold watch and pin, alleged to have been owned by testatrix at her death in 1903, there is no proof that she had them at that time, but in 1905 or 1906 the mother of all the parties had said articles in her possession and claiming to be the owner gave the ring to a sister of testatrix and the watch and pin to that sister’s daughter, both of whom wore the articles openly and without question as to their right thereto up to within a short time of the institution of this proceeding in 1911, and it appears that the mother of all the parties died in 1910, the presumption in the absence of proof to the contrary is that she was the owner of said property, and the proceeding should be dismissed.
    
      Semble, that the Statute of Limitations had run against the remedy of the petitioner, the executor, to whom letters had been issued in 1903, and the proceeding should be dismissed for that reason.
    No consent having been filed that the surrogate might determine the ownership of the property, under section 2710 of the Code of Civil Procedure, the surrogate was without jurisdiction to determine the fact of ownership of the articles, so far as the facts were in dispute.
    Proceeding for the discovery of" personal property alleged to belong to testatrix.
    Thomas F. Powers, for petitioner.
    George B. Wellington, for respondent.
   Heaton, S.

This proceeding was commenced by the filing of the petition on the 25th day of January, 1911, for the discovery of personal property alleged to belong to the testatrix at the time of her death, on the 5th day of July, 1903. On the 30th day of October, 1903, letters testamentary were issued to the petitioner, McConihe, who alleges that his sister and the sister of testatrix has in her possession or under her control one three-stone diamond ring, one gold watch and one watch pin, the property of such deceased sister.

The material facts are substantially undisputed.

Mrs. Kellogg was in possession of and the apparent owner of the articles in question during the last few years of her life, but whether she had them at the time of her death does not appear. She died at Waterbury, Conn., while temporarily residing there. The petitioner was appointed executor of her will within a few months after her death and has settled his account as executor, but is also the sole trustee of her whole residuary estate and is now acting as such.

There is no evidence of the possession or ownership of these articles from the time her brother saw her wearing them during her lifetime down to the year 1905 or 1906, at which time Mrs. McConihe, the mother of all of the parties, was in possession of the articles and gave the ring to Mrs. Shields and the watch and pin to the daughter of Mrs. Shields, both of whom have worn the said articles openly and without question as to their right to have them down to a few months before this proceeding was brought. Mrs. McConihe, the mother of all the parties, died about a year ago.

No consent has been filed that the surrogate may determine the ownership of the property under section 2710, Code of Civil Procedure; and, therefore, so far as the facts are in dispute, the surrogate cannot determine them, although he may without consent decide questions of law. Matter of Steins, 60 Misc. Rep. 631; Matter of McGee, 63 id. 494.

Whether Mrs. McConihe, the mother of the deceased, obtained the articles from her during her lifetime, or from her husband, or even from this petitioner, her. executor, soon after her death, there is no evidence. We find her in possession of them, claiming to be their owner, from two to three years after Mrs. Kellogg’s death; and we find Mrs. Shields and her daughter in possession of them under claim of ownership during the past five or six years.

The principle of the legal presumption of ownership from possession is well established and has often been applied. Hoyt v. Van Alstyne, 15 Barb. 568; Wheeler v. Vanderveer, 88 Hun, 233.

In the two cases of Halsey v. Hart, 66 N. Y. St. Repr. 48; 38 N. Y. Supp. 665, and Matter of Mapes, 80 Hup, 6, the same point, that the property in question had at one time been owned by a deceased person and no evidence had been offered showing a transfer by such deceased person to the person claiming title, was involved, and in each case the presumption of ownership in the lawful possessor was held to apply.

The attorney for Mrs. Shields also calls attention to the Statute of Limitations and contends that such statute has run, and that this proceeding should be dismissed for that reason, as well as for the reason that the facts are in dispute.

The cause of action to recover this property accrued on July 5, 1903; and it would seem that the statute had run against the remedy of the petitioner. Kelsey v. Griswold, 6 Barb. 436; Northrup v. Smith, 118 N. Y. 682. The proceeding is dismissed.

Proceeding dismissed.  