
    In the Matter of the Petition of Amos L. Sargent for a Compulsory Accounting by Robert Armstrong, Jr., and Margaret H. Bradley, as Administrators, etc., of George Bradley, Deceased. Amos L. Sargent, Respondent and Appellant; Margaret H. Bradley, as Administratrix, etc., Appellant and Respondent.
    
      Sale of a decedent's real property to pay Ms debts — accounting for the proceeds —presumed. date of the allowance of a claim of a creditor who has applied theref or — Statute of Limitations as affecting the claim and the right to compel an accounting —presumption as to the date of the receipt of the proceeds of a sale by the administrators.
    
    Where, upon an application by a creditor of a decedent, under section 2726 of the Code of Civil Procedure, to compel the latter’s administrators to render an account of the proceeds of real estate of the decedent sold by them for the - payment of his debts, it appears that the petition presented by the administrators upon which the decree authorizing the sale was granted, set forth the moving creditor’s claim as a debt, the date of the allowance of such claim will, in the absence of evidence upon the subject, be presumed to be the date of the presentation of the petition for the sale of the real estate.'
    The presentation of such petition, being the commencement of legal proceedings for the payment of the creditor’s claim, stays the running of the Statute of Limitations against the claim.
    The Statute of Limitations governing the creditor’s right to require the administrators to render an account of the proceeds of sale (if there be such a statute), does not begin to run until the administrators receive such proceeds.
    In the absence of proof as to the time when such proceeds were received by the administrators, the date will be presumed to be that on which they filed their report of sale with the surrogate.
    Cross-appeals by the petitioner, Amos L. Sargent, and by Margaret H. Bradley, as administratrix, etc., of George Bradley, deceased, from an order of the Surrogate’s Court of the county of Washington, entered in said Surrogate’s Court on the 21st day of November, 1898, denying the application of the petitioner to compel the administrators to account for their proceedings as to the personal property of their intestate, and directing them to account for the moneys received by them from" the real estate disposed of under the decree of said Surrogate’s Court for the sale of the decedent’s real estate for the payment of his debts.
    On the 7th day of October, 1883, the firm of Bradley & Underwood gave their promissory note for the sum of $2,89451, payable six months after date, with interest^ to the petitioner, Amos L. Sargent. Thereafter Underwood diedl, leaving Bradley surviving partner, and, on the 5th clay of November, 1887, George Bradley, such surviving partner, also died, leaving unpaid upon such note the sum of $821.25.
    Letters of administration upon tlie estate of George Bradley were issued to Robert Armstrong, Jr., and. Margaret H. Bradley on the 14th day of November, 1887. Thereafter, but the precise time does not appear, the petitioner called upon Mrs. Bradley for payment of such note, who said to him, “ Go to Mr. Armstrong, and he will arrange it with you.”
    Armstrong paid the interest upon such note from time to time until about the 1st of October, 1897.
    In the year 1890 Robert Armstrong, Jr., and Margaret H. Bradley, administrator and administratrix, presented a petition, verified by both of them, to the Surrogate’si Court asking for the sale of real estate of George Bradley, deceased^ for the payment of his debts; among such debts is stated to be the balance unpaid upon the Bradley & Underwood note, amounting to $821.25.
    Thereafter, and on the 10th day of January, 1891, a decree was entered in the Surrogate’s Court reciting the petition of said administrator and administratrix and the allegation therein that the claim of the petitioner for $821.25 was a valid and subsisting claim against-decedent’s estate, and adjudging that the claims of the creditors therein before stated were valid and subsisting debts against said decedent’s estate and decreeing the isale of decedent’s estate' to pay such debts.
    On the 3d day of March, 1893, a report of. sale signed by Robert Armstrong, Jr., and Margaret H. Bradley, as administrator and administratrix, was filed in the Surrogate’s Court, in which said-administrator and administratrix reported that they had sold the decedent’s real estate for the sum of $19,995.50.
    So far as appears from the record before us, nothing was thereafter done in the matter until the 3d day of September, 1898, when the petitioner presented a petition to the Surrogate’s Court demanding an accounting by such administrator and administratrix, among other things setting up in such petition the sale of such real estate and their failure to aecourit for the proceeds thereof.
    
      Margaret H. Bradley, as administratrix, answered and contested the right of the petitioner to such accounting, but Robert Anmstrong, Jr., made default.
    The Statute of Limitations was asserted as a bar and a defense to the petitioner’s proceedings ; it is asserted as a bar to his recovery upon the note, and also as against his right to call the administrator and administratrix to account.
    The surrogate held that the petitioner was not entitled to an accounting as to the personal property of the decedent, but was entitled to an account of the proceeds of the sale of the real estate, and held that the Statute of Limitations had not run as against the note.
    The record is somewhat meagre; the various orders and decrees referred to are not contained in it; when the note was presented as a claim against the estate does not appeal, nor when it was allowed as such claim ; neither, does it appear when the real estate was sold and the proceeds came into the hands of the administrator and administratrix.
    The administratrix, Margaret H. Bradley, appealed from the order of the surrogate directing an accounting for the moneys received from the sale of the real estate. The petitioner appealed from that portion of the order of the surrogate which refused, to direct such administrator and administratrix to render an account as to the personal property of the decedent.
    
      J. A. Kellogg, for Margaret H. Bradley, administratrix.
    
      Charles R. Paris and C. H. Sturges, for the petitioner, respondent and appellant.
   Herrick, J.:

It appears from the petition of the administrator and administratrix that, some time on or prior.to November 1, 1890, they had allowed and adjusted the claim of the petitioner upon the note. .

That adjustment and allowance of the claim fixed a new period from which the statute would commence to run as against such demand, and in the absence of any evidence as to when, the claim was in fact allowed, I think we must fix the date of such allowance as of the time when the petition was presented to the Surrogate’s Court; if it was allowed at' an earlier period the person seeking to set up the bar of the statute should have proved it.

The presenting of that petition was the commencement' of legal proceedings for the payment of such claim, and the statute will not run against it pending proceedings to procure money for its payment.

It is familiar law that when legal proceedings are commenced to enforce a right, before the statute has run against it, that no lapse of time after the commencement of such proceedings will operate as a bar to the enforcement of that right. (Evans v. Cleveland, 72 N. Y. 486, 488.)

And while that principle is ordinarily applicable to proceedings commenced in person by the party claiming the right, yet I do not see why the same principle does not apply when such proceedings are instituted in his behalf and for his benefit, particularly when in a case like that of a claim presented to and admitted by an administrator, which renders an action to obtain a judgment for it unnecessary. It seems to me, therefore, that the claim itself is not barred. The next inquiry is whether the right to call the administrator and and; administratrix to account is bárred.

The general rule is that the six years’ Statutej of Limitations applies to proceedings against executors and administrators. (Roup v. Bradner, 19 Hun, 513; Matter of Rogers, 153 N. Y. 316.)

While such rule and the authorities cited uphold the decision of the surrogate in not compelling the defendant to account for the personalty, I do not think such rule or the cases, bar an accounting as to the proceeds of the real estate.

As administrator and administratrix, primarily, they have nothing to do with the decedent’s real estate;. they have no control over it as such ; they can only sell it by virtue of the special proceedings authorized by title 5 of chapter 18 of the Code of Civil Procedure (§§ 2749-2801), under which, if they refuse to act, a freeholder can be designated by the surrogate to sell the same for the purpose of procuring money to pay debts. (§ 2767.)

: They are proceedings which may be instituted by an executor or .administrator, or by a creditor of the estate. When, pursuant to such proceedings, the executor of administrator sells, he is, before selling, required to give a bond to account for all money received by him whenever he is required to do so by a court of competent jurisdiction. (§ 2766.)

Under section 2726 of the Code of Civil Procedure, the Surrogate’s Court “ may, from time to time, compel a judicial settlement of the account of an executor or administrator. * * * 3. Where a decree for the disposition of real property, or of an interest in real property, has been made, as prescribed in title fifth of this chapter, and the property, .or a part thereof, has been disposed of by him pursuant to the decree.”

It will be observed that the accounting provided for by the last section cited is a special accounting for their proceedings in a special proceeding, not an accounting for their proceedings generally as executors or administrators.

If we assume that the statute does run in such a case, it cannot commence running until the creditor’s right to call them to an account has accrued; The right to call them to an account for the moneys received from the real estate could not accrue until they had received such money.

There is no evidence as to when this money was received by them, except their report filed March 3, 1893. If they received it at an earlier time, it was incumbent upon them to prove the time of such receipt, in order to fix the time from which the statute commenced running; in default of such proof, I think we ,must take the date of their report to the surrogate as the time, when the right to call them to an account for the receipt of such money accrued. These proceedings to call them to an account were commenced less than six years thereafter.

The proceedings here for the sale of the real estate were instituted under the title and chapter of the Code of Civil Procedure men-' tioned in section 2726. The record discloses that the real estate has been disposed of by the administrator and administratrix pursuant to the decree; it shows that they sold such real estate for more than $19,000, and it is to be inferred from their report that they received that amount of money therefor; they did not account for it, and it must be assumed that they still have it, and such assumption must continue until they do account for it.

The petitioner in his petition, after alleging the obtaining of a decree for the sale of real estate for the payment of debts, and the sale of such real estate under such decree, further alleged that “ The said administrator and administratrix have not accounted for the proceeds thereof, or paid any part thereof to your petitioner.”

The administratrix filed a written answer, in which she denied various allegations of the petition, but did not deny that portion of it referring to the real estate in question, or that portion which charged that the administrator and administratrix had not accounted for the proceeds of the sale thereof, and it must, therefore, be taken as admitted that the proceeds of the real estate have never been accounted for.

So far as. the record before us discloses, the proceedings authorized by the Surrogate’s Court for the sale of real estate to procure money with which to pay this and other claims against the decedent’s estate have never been concluded. The case before us, therefore, comes within section 2726,: of the Code of Civil Procedure, above cited. x

The decree of the surrogate should, therefore, be in all things affirmed, without costs of this appeal to either party.

All concurred, Parker, P. J., in result.

Decree of the surrogate affirmed, without costs to either party#  