
    In the Matter of the Judicial Settlement of the Accounts of Charles W. Hallenbeck, as Administrator de Bonis Non of Peter A. Hallenbeck, Deceased, Respondent. Sarah E. Bruce, as Administratrix with the Will Annexed of Margaret L. Hallenbeck, Deceased, Appellant.
    Third Department,
    May 8, 1907.
    Executors and administrators — when commissions of deceased administratrix should, be determined — correction of errors in inventory-of deceased administratrix — rejection of claim waived by administrator de bonis non—when claims not barred by Statute of Limitations.— property owned jointly not set off for widow.
    The commissions of a deceased administratrix should be determined on an accounting brought by her executor to ascertain the liability of her estate to the estate for which she acted and should not be allowed on the accounting of . an administrator'^ bonis non thereafter appointed. When a mortgage had been erroneously inventoried by a deceased administratrix, the error may be corrected in the accounting of a subsequent administrator de bonis non without requiring the fornialities of proof of a claim against the estate.
    
      Where an administrator de bonis.non before the short Statute-of Limitations has run admits the validity of a claim which was rejected by a former administratrix, the claim is not barred by the subsequent expiration of - the . short statute; for it is presumed that the claimant refrained from suit relying upon the acceptance of the claim and the withdrawal of the prior rejection.
    A part payment on a joint note made by one Of the makers-at the-request of and in the presence of- the other, from their joint moneys istops. the running of the six years’ Statute of Limitations.
    Property. which is jointly o.w-ned hy a decedent and another cannot be set off as exempt articles to the widow of the decedent.
    Appeal by Sarah.E.: Brace,, as administratrix, etc., from á decree of-the Surrogate’s- Court of the county of Columbia, entered in said Surrogate’s Court on the 11th day. of April, 1906.
    The controversy arises over the judicial settlement of the accounts of the administrator de bonis non of the estate of. Peter- A. Hallenbeck,: deceased. On his, death the intestate left surviving his mother, Almina Hallenbeck, his brother, Charles W. Hallenbeck, and Ms widow,, Margaret • L. Hallenbeck, Ms only next of kin. Letters of administration on his estate were first issued to his widow, Margaret L. Hallenbeck. She died July 8, 1903, leaving the estate . unadministered ■ and leaving a will appointing Jacob H. Smith as, the- executor thereof, which will was admitted. to probate and letters testamentary issued to said Smith. Letters. of administration ■ de bonis non upon the estate of Peter A. Hallenbeck wepe on July 10, 1903, issued to his brother, Charles W. Hallenbeck, who caused an inventory of the estate to be filed. - Included in that, inventory was a mortgage for $3,500, given by Cornelius and Lydia Hallen- . beck to Peter A. and Charles W. Hallenbeck,' one-half of which, viz., $1,750, was included in the inventory as the property of the estate- On thy accounting had by Jacob II. Smith as. executor of . Margaret L. Hallenbeck, deceased; it was decided by the, surrogate that her estate was chargeable with the sum of. $486.10 of moneys which came into, her hands' as administratrix of said Peter A. Hallenbeck. This sum was afterwards, reduced by a credit of an amount allowed for counsel fees rendered to her as such administratrix. ■ . . . • ■
    On the presentation of the accounts of Charles W. Hallenbeck as administrator de bonis non, Smith, as executor of Margaret L:, Hah lenbeck, filed objections thereto. Smith died in September, 1905, and Sarah E. Bruce,, this appellant, was appointed as administratrix with the will annexed of said Margaret L. Hallenbeck. and substituted in his place as a party in this proceeding. Eurther facts are stated in the opinion.
    
      Q. K. Daley, for the appellant.
    
      L. Royee. Tilden, for the respondent.
   Chester, J.:

It is claimed that the surrogate erred in not allowing anything to the appellant for commissions of Margaret L. Hallenbeck as administratrix of her husband’s estate. The place where such commissions should have been- allowed, if she were entitled to any, was on the- accounting of Smith as her executor to ascertain the liability of her estate to that of her husband for her acts as administratrix. There is nothing here to show whether such commissions were there allowed or disallowed. It may be presumed that they were there made the subject of adjudication one way or the other, for, as a final result, there was found to be quite an amount due from her estate to that of her husband, which' amount was there directed to be paid over to Charles W. Hallenbeck as administrator de bonis, non. The surrogate was, therefore, correct in allowing commissions in this matter to no one but the accounting party.

In the next place the decree is attacked because of the conclusion that Almina Hallenbeck, the mother of -Peter and Charles, is the owner of $1,000 of the moneys secured to be paid by the mortgage specified in the inventory -as having been given by Cornelius and Lydia Hallenbeck to Peter and Charles Hallenbeck. It appears that .that mortgage was given by the mortgagors to, secure the sum of $4,000 ; that $500 thereof had been paid; that at the time of the execution and delivery of such mortgage Almina Hal-. lenbeck advanced: to the mortgagors $1,000 of the moneys secured thereby, which amount:-never-had béén repaid, and that when interest upon the mortgage was paid to Peter and Charles the interest on this $1,000 was turned over to Almina.' notwithstanding these facts the mortgage was erroneously inventoried by stating that one-half thereof, amounting to $1,750, belonged to the estate of Peter. All that the surrogate’s decree does is to correct the amount of this inventory and the accounts based thereon-by showing that $1,250 of this mortgage only belonged to the estate o.f Peter. This was not in any sense the proof of á claim against an estate so as to require the formalities incident to such proof, but was a holding that the mortgagors owed Almina $1,000 and the estate of Peter and Charles- each $1,250, and on the facts found, which are practically undisputed, the conclusión the surrogate-reached necessarily follows and was correct.

Again, the appellant claims that the surrogate erred in holding that a note of $5",000, made by Peter and Charles, dated December 23, -1893, and payable to Almina Hal-lenbeck, was á valid and existing joint obligation of Peter and Charles until - its payment by Charles; that' the same was not outlawed, and that upon its payment by Charles he became entitled to. contribution from the estate pf Peter for one-half of the amount so paid. It is insisted that this note is barred by the general Statute of Limitations (Code Civ'. Proc. § 382) and also by. the short Statute of Limitations.(Code Civ.. Proc. §1822). It appears that Almina ITallenbeck presented a claim to Margaret L. Hallenbeck as administratrix of Peter A. Hallenbeck óñ said note and that "the claim was rejected by the administratrix on tlie 29th day of January, 1903. The administratrix died the following July and Charles W. ITallenbeck was appointed in her place as - administrator de bonis non. Within-one or two days after bis appointment and before the short Statute of Limitations had run, Charles admitted the claim and made a promise to Almina that he would pay the note in question, and.thereafter and before his. accounting he did pay it. If he liad not "made this promise ■ when he did Almina would undoubtedly have brought a suit against the estate of Peter .upon the note so as- to prevent the running of the Statute' of Limitations. It is fair to presume that the .promise which she had received from the administrator to pay the note was relied upon by her and prevented her from taking the necessary steps, to prevént the statute, from running as against her large • claim: There appears to be no question about the genuineness of the note. She . had -a right to assume under such circumstances that the rejection by the deceased executor was either recalled or waived.. Under these facts the surrogate was correct in holding that the short- Statute of Limitations, imposed-by section 1822 of the Code of Civil Procedure, had.not run against the claim. It also appeared by entirely creditable evidence, and it is undisputed, ■that on the 1st day of April, 1901, Charles paid to Almina twenty-five dollars interest on said note, and that the same was indorsed thereupon, and that such payment was made at the request of Peter, and in his presence, and from the joint moneys of Peter and Charles, and the surrogate has so found on sufficient .evidence. ' That being so the note was not barred by the six-year Statute of Limitations.'

The further claim is made by the appellant that the conclusion that certain articles of personal property were improperly set off, as exempt articles to the -widow of the deceased, was wrong under the law. The proof is that these articles were jointly owned by Peter and Charles at the time of the death of Peter. In Baucus v. Stover (24 Hun, 109) it was held that where a testator had but a half interest in personal property that it could not be set apart to the widow, because it was not such an ownership and possession of property by the deceased or his personal representatives as would permit their delivery to the widow, and, therefore, they could not be set off to her. While that' case was reversed on appeal, it was on other grounds than the one here stated. (89 N. Y. 1.)

The decree should be affirmed, with costs.

Decree unanimously affirmed, with costs.  