
    In the Matter of the Estate of Sarah Macomber, Deceased.
    
      (Surrogate’s Court, New York County,
    
    
      Filed April 17, 1890.)
    
    Executobs and administratobs—Limitation.
    Where the statute had not barred a claim of the executor at the time of decedent’s death, its running is suspended until the first judicial settlement of the executor’s account and he is not precluded from proving the claim on such accounting.
    2. Same—Payment.
    The executor is not called upon to prove nonpayment; but the burden, of proving payment is upon the party alleging it.
    Settlement of • accounts of executor.
    
      Edward E. Sprague and Fred. Ingraham,, for the executor; William J. Gaynor, for Mary L. O’Flyn; Frederick G, Dow, for George Powers ei al.
    
   Ransom, S.

The evidence sustains the report of the referee, and unless there is something in the questions hereinafter considered that requires a different disposition of the case, the report should-be confirmed. It is insisted by the contestant that certain debts, which the executor claims the testatrix owed him at the time of her death, and which he is seeking to prove upon this-proceeding for the first- judicial settlement of his accounts, were barred by the Statute of Limitations. Fourteen years have intervened between the date of the death of the testatrix and the initiation of this proceeding. None of the claims in question were-barred at the time of testatrix’ death. Prior to the amendment of § 37, chap. 460 of the Laws of 1837, by chap. 594 of the Laws of 1868, the statute ran against a debt due the representative of the estate, as well as against that of any other claimant. Matter of Rogers, 1 Redf., 231; Burnett v. Noble, 5 id., 73-4; Boughton v. Flint, 74 N. Y., 476.

By the act of 1868, and § 2740 of the Code of Civil Procedure, which superseded that act, if the statute had not barred the-claim or demand of an executor or administrator at tne time of decedent’s death, its running was suspended until the first judicial .settlement of the account of the executor or administrator. See Estate of Willard, 29 N. Y. State Rep., 949.

The executor, therefore, was not prevented from proving his -claims on the present accounting. One of the claims in question is upon a promissory note made by the testatrix. It is contended by the contestant that the burden of proof as to the non-payment thereof rested upon the executor. Payment is an affirmative defense which the party alleging it must prove or establish. Eagan v. Kergill, 1 Dem., 466; McKyring v. Bull, 16 N. Y., 297.

Especially is this so where the claimant is, as in this instance, precluded from personally giving the proof. Lerche v. Brasher, 104 N. Y., 157, 161; 4 N. Y. State Rep., 335.

The power of sale conferred on the executor, although doubtless a discretionary one, is sufficiently general in character to admit -of the application of the proceeds of the real estate sold pursuant •to it to the payment of decedent’s debts. Erwin v. Loper, 43 N. Y., 521, 525.

Of the jurisdiction of the court to entertain or compel an accounting for such proceeds there can be no doubt. Section 2724, subd. 4, Code Civ. Pro.; Estate of Cutting, Surr. Dec., 1885, p. 347; Daily Register, Nov. 8, 1885.

Referee’s report is confirmed.  