
    Westchester County.
    —Hon. OWEN T. COFFIN, Surrogate.
    January, 1889.
    Matter of Dunham. In the matter of the judicial settlement of the account of David H. Dunham, as surviving executor of the will of John B. Dunham, deceased.
    
    The provisions of section 1819 of the Code of Civil Procedure giving to a person entitled to a legacy or distributive share of an estate, the right to maintain an action against an executor or administrator who refuses to pay on demand a legacy or distributive share after the expiration of one year from the granting of letters testamentary or letters of administration, and providing that “ for the purpose of computing the time within which such an action must be commenced the cause of action is deemed to accrue when the executor’s or administrator’s account is judicially settled and not before,” apply to actions only, and not to special proceedings, and therefore do not give a legatee the right to- cite the executor or administrator to account in the Surrogate’s Court after the statute of limitations has run against the legacy.
    It is not necessary for a legatee or distributee to make a demand of an executor or administrator for a legacy or distributive share as a necessary condition of his right to call him to an accounting before a Surrogate, and therefore such a case is not governed by section 410 of the Code of Civil Procedure which provides that where a right grows out of the receipt or the retention of money or property by a person acting in a fiduciary capacity, the time within which an action must be brought is to be computed from the time when the person having a right to make the demand therefor has actual knowledge of the facts upon which the right depends.
    Compulsory accounting of David H. Dunham, surviving executor.
    Anne P. Dunham, a granddaughter of the testator who by a judgment of the Supreme Court rendered in 1873 was declared entitled to One fifth of the residuary estate, on Oct. 20, 1888, presented a petition praying for a citation requiring David H. Dunham, surviving executor of the will of John B. Dunham to show cause why he should not make and settle an account as such executor and also as executor of his mother who had been an executrix of the will of the testator and who had died in 1887, leaving a will of which he was the executor.
    Upon the return of the citation the surviving executor claimed that the petitioner could not compel him to render his account by reason of the statute of limitations which had run against petitioner’s claim. Further facts appear in the opinion of the Surrogate.
    De Witt, Lockman & De Witt, for Anne P. Dunham, petitioner.
    
    Joseph F. Wood, for David H. Dunham, surviving executor.
    
   The Surrogate.

It is alleged in the petition in this matter that, in 1873, a judgment, construing the will of the testator, was rendered by the Supreme Court, in and by which it was adjudged, among other things, that the petitioner, who was then a minor, was entitled to one fifth part of the residuum of the real and personal estate of the deceased. It does not appear what sum is claimed by the petitioner, but that portion in which she alleges an interest is understood to be very considerable in amount.

The testator bequeathed the use of $10,000 to Elizabeth Maria Phillips, a grandchild, and at her death to her surviving issue, if any, and if none, then one fifth was given to the petitioner. It does not appear whether she is living, or what has resulted from that provision, but it seems to be assumed that the petitioner is interested in no trust created by the will. If, however, her right to share in that fund be still in abeyance, she can maintain no proceeding for its recovery now, while, at the same time, the subsistence of that .trust would not have prevented her from taking steps for the recovery of any other legacy given directly to her, and which became due at the end of a year from the death of the testator. The only question discussed is in regard to the statute of limitations, and its effect upon the petitioner’s claim.

There is no doubt that the existing statutes upon that subject are applicable to this case, and the argument has proceeded upon that basis. The provisions of section 382 of the Code are applicable to special proceedings by section 414 j and, as this proceeding was not commenced within one year after the petitioner became of age, as provided by section 396, the six years’ limitation having run during her minority, the claim must be held to be barred by the statute, unless relief from such a result may be found under the provisions of section 1819, which is as follows: “ If, after the expiration of one year from the granting of letters testamentary, or letters of administration, an executor or administrator refuses, upon demand, to pay a legacy or distributive share, the person entitled thereto may maintain such an action against him as the case requires. But, for the purpose of computing the time within which such an action must be commenced, the cause of action is deemed to accrue, when the administrator’s or executor’s account is judicially settled, and not before.”

It is insisted by counsel, and it has been so held by some of the courts, that the above section is applicable to Surrogates’ Courts. This would seem to be an error. Title III. of Chap. XV. of the Code is declared to refer to “ Actions relating to the estate of a decedent; ” and the first article of that title, in which section 1819 occurs, is stated to be in regard to an Action by or against an exécutor or administrator.” It will be observed that nothing is said about special proceedings, nor does it seem by any provision, to have been made applicable to them. The whole title relates only to actions, and the section itself provides for “ maintaining such an action,” under certain conditions. If it could properly be held to apply, to Surrogates’ Qourts, then no provision of the chapter of limitations, or other provision of limitation, could be interposed by an executor or administrator, on a first judicial settlement of his account, to the claim of a legatee or distributee, notwithstanding that ten or any number of years might have elapsed since the legacy or distributive share became due. If he could not interpose such a defence, or if he did and it were overruled, and the account were judicially settled, then we should have the anomaly of an action maintainable against him, although ten or even fifteen years might have intervened since the claim became actually due.; for the section declares it to become due, for the purpose of said action, only on the judicial settlement of the accounts. The reasoning of Justices Van Brunt and Daniels in the Matter of Van Dyke, 44 Hun 394, are fully concurred in, and leave little more to be said. In that case, they had their attention called to all the cases bearing upon the subject (see 5 Dem. 331), among which was that one to which allusion is presently made. The object of the section seems to have been twofold: (1) a liquidation of the amount due; (2) to exempt from the running of the statute the time, often extending'to years, during which a litigation of the account should extend.

The petitioner’s counsel cite the case of Drake v. Wilkie, 30 Hun 537, as an authority to show that the statute cannot be successfully interposed in this proceeding. In that case, the legacy became due in 1873 ; the legatee lived in the state of Missouri, and did. not know the true amount of her legacy until February, 1881 ; and no demand was made for its payment until a few weeks before June 28, 1881, when the proceeding was commenced before the Surrogate with a view to its recovery, and who held that it was not barred by the statute. The learned presiding justice who delivered the opinion of the court in that case, held that the facts brought the case within the provision of section 410 of the Code, which excluded the application of the statute of limitations until six years had elapsed after demand made, because of a lack of actual knowledge of the facts upon which her right depended. In the course of the opinion, a kindly criticism is made of the point decided in the case of House v. Agate, 3 Redf. 307, to the effect that no demand was a necessary preliminary to a proceeding before a Surrogate to enforce payment of a legacy. The opinion of the able jurist proceeded upon the theory that section 414 applied and had reference to section 410 ; while, in fact, the latter has no application to a case where a demand is not necessary. It is believed that no provision of law can be found which makes it necessary for a legatee or distributee to make a demand of the executor or administrator for his legacy or distributive share, as a necessary condition of his right to call him to an accounting before a Surrogate. Undoubtedly section 9, 2 R. S. 114, and section 1819, which is substituted for it, render a demand necessary as a condition, without which an action cannot be maintained. Neither of them had or has anything to do with a proceeding of this character. They are entirely separate and distinct. If section 410 has no application to the case, then clearly, the court was in error in affirming the decree of the Surrogate.

Even if the ten years’ limitation prescribed by section 388 could be invoked, and it is not believed it could, the claim of the petitioner will still be barred.

It is difficult to understand the raison d’etre of section 1819. When section 9, 2 R. S. 114, was enacted there was a cause for it which we understand. Then, there was no provision for docketing a decree of the Surrogate for the payment of money. He could not proceed to enforce obedience to it by attachment proceedings ; it was no lien upon real estate, while the section, authorizing an action to be commenced, gave a wider range of remedy. At present, such a decree may be docketed and become a judgment of the Supreme Court, with like force and effect as if rendered by that court (Code Civ. Pro., § 2553), and, by the next section, the Surrogate himself may issue an execution, the scope of which shall be the same as if it were an execution issued out of the Supreme Court. It is not easy, therefore, to discover any additional advantage that a party interested in the estate could gain by bringing an action which should result in obtaining a judgment therein in the Supreme Court.

However much it may be a subject of regret that this legatee or distributee, as the case may be, is precluded by law from the recovery of, perhaps, a large sum otherwise justly belonging to her, it must be borne in mind that it springs from her own delay in availing herself of the opportunities once afforded her.

The application must, therefore, be denied.  