
    In the Matter of the accounting of Philip R. Underhill, Adm’r.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed July 18, 1890.)
    
    Executobs and administbatobs — Accounting—Limitation.
    Elizabeth Underhill died in 1860 and bequeathed $8,000 and certain bank stock to her husband. The bank stock was transferred by him to his son, who was executor of his mother’s will. The husband d ed in 1861, and the son was appointed administrator of his estate. On this application for an accounting made in 1889, a paper in the son’s handwriting was introduced, purporting to be a statement of account between himself as executor and administrator and his father, in which he charged himself with interest on $8,000 and with dividends on the bank.stock. It was not shown what the paper was made for or to whom it was given. Held, that this paper was not sufficient to charge him with holding the stock as trustee; and that as appellant was entitled to an accounting in 1863, the present application is barred by the statute.
    Appeal by Elizabeth E. Gfuion, as executrix of Elizabeth Gruion.from decree of surrogate dismissing her application to compel Philip E. Underhill, as administrator with the will annexed of Isaac Underhill, to account.
    
      Alex. Thain, for app’lt; A. B. Dyett, for resp’t.
   Barnard, P. J.

Elizabeth E. Underhill died before the year 1860, leaving a last will. She gave to her husband $8,000 and all her Manhattan Company stock. She had 263 shares, value of $24,000. By her will she appointed her husband, Isaac Under-hill, and her son, Philip E. Underhill, as executors. Isaac Under-hill, in August, 1860, transferred this stock to his son through Carlisle Norwood, president. When Isaac Underhill died, Philip E. Underhill was appointed in March, 1861, administrator with the will annexed. No inventory was ever filed by. him of his father’s estate. The petitioner, Mrs. Gruion, is a daughter of Isaac Underhill. Philip E. Underhill always denied that his father left any property to her. In March, 1889, she procured a citation for the administrator with the will annexed of Isaac Underhill for an accounting. The answer sets up the statute of limitation.

There was a paper proven to be in the handwriting of Philip E. Underhill, purporting to be a statement of accounts between Isaac Underhill and P. E. Underhill, executor. This paper shows a balance due P. E. Underhill of $3,131.22 on December 20th, 1860. This paper will justify the inference that the $8,000 given by the mother’s will was in Philip E. Underhill’s hands, as he charges himself-with interest on that sum. The same paper continues the account with P. E. Underhill, administrator, to October 22d, 1865. On this account the administrator with the will annexed charges himself with the interest on the Manhattan stock down to August, 1865. The petitioner was entitled to an account of P. E. Underhill as administrator in 1863. Code, § 2724.

So that the claim of petitioner is barred by the Statute of Limitation of ten years unless it is saved by one of the exceptions to prevent the running of the statute. The petitioner 'claims that the administrator, P. E. Underhill, was a trustee. There is no evidence of this. The paper account would call for an individual debt from P. R Underhill to his father for $8,000 on the 10th December, 1860, if the credit of interest proved an existing sum as principal. There is nothing in the paper which in this respect overcomes the oath of the administrator. The paper is unexplained. What it was for, to whom it was given, does not appear. The record so far as the dividends on the Manhattan stock are credited is at war with the record of the stock made by the testator Isaac Underhill himself, for he died in 1861 and had transferred this stock in his lifetime. The paper in the face of the bank record and of the testimony of the administrator is not sufficient to charge him with holding the stock as trustee for his father. The proof fails to show a case of fraud such as will prevent the running of the statute. If he denied a debt and subsequently proof was discovered showing the denial to be false, the statute was not arrested until the proof was found. Perhaps the failure to explain the paper is due to the age of the administrator as the case alludes to him as an aged man. There is no reason shown therefore, why the statute did not run, and after this lapse of time the claim is barred.

Judgment affirmed, with costs.

Dtkman and Pratt, JJ., concur.  