
    (73 Hun, 430.)
    ADAMS v. FASSETT et al.
    (Supreme Court, General Term, Fourth Department
    December 8, 1893.)
    Limitations—Action against Devisee for Testator's Debts.
    An action to charge devisees with the debts of testator (Code Civil Proa I 1843) is governed, as to limitation, by section 388, which provides that an action, the limitation of which is specially prescribed, must be commenced within 10 years after the cause of action has accrued. Mortimer v. Chambers, (Sup.) 17 N. Y. Supp. 874, followed.
    Appeal from special term, Jefferson county.
    Action by Mary J. Adams against Maria A. Fassett and others. There was a judgment in favor of plaintiff, and defendants appeal.
    Affirmed.
    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 therii 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 collectible out of the real property described in the complaint, with costs, such recovery to he apportioned in the manner prescribed by law between the defendants according to the value of their several devises.”
    Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.
    Brown & Adams, for appellants.
    Rogers & Atwell, for respondent.
   HARDIN, P. J.

Section 1843 of the Code 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, 31 N. E. 445, the history of the legislation leading up to the enactment of section 1843 of the Code is given, and at page 136, 134 N. Y., and page 447, 31 N. E., of the opinion, it is-said that it is quite apparent that section 1848 of the Code enlarges the rights of creditors by permitting recoveries “when it appears that the creditors will be unable, with due diligence, tocoUect 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, 17 N. Y. Supp. 874, and the cases there cited. See, also, Hulbert v. Clark, 128 N. Y. 295, 28 N. E. 638; Code, § 388; Mead v. Jenkins, 27 Hun, 573, affirmed 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.,

(concurring.) Thé 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 section 388 of the Code, and could be brought within 10 years after the statute commenced to run. The cases of Wood v. Wood, 26 Barb. 356; Salisbury v. Morss, 7 Lans. 359, affirmed 55 N. Y. 675; and Mortimer v. Chambers, 63 Hun, 335, 17 N. Y. Supp. 874,—sustain that conclusion. If, however, the ten-years limitation was not applicable, and the action was controlled by section 382, which provides that the actions herein mentioned shall "be brought within six years, still the action was not barred. Section 400 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 section 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 that 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; Id., 29 Hun, 253; Mortimer v. Chambers, 63 Hun, 344, 17 N. Y. Supp. 874; Malloy v. Vanderbilt, 4 Abb. N. C. 127, 130. I think the judgment should be affirmed. 
      
       Code Civil Proc. § 388, provides as follows: “An action, the limitation-of which is not specially prescribed in this or the last title, must be commenced within ten years after the cause of action accrues.”
     