
    Edward B. Lynch, Resp’t, v. George W. Lynch, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 26, 1895.)
    
    Limitation — Decedent’s estate.
    In an action by a child of a decedent to recover personal property,, brought after an action by an executor would have been barred, the plaintiff need not state whether the decedent died testate or intestate, or whether any executors or administrators of his property were appointed or whether an action was commenced by them in respect thereto; the facts, if they exist, are matters of defense to the action and must be alleged by the defendant in his answer.
    Appeal from an interlocutory judgment, overruling a demurrer to the complaint.
    
      W. Wickham, Smith, for app’lt; Horace Graves, for resp’t.
   Dykman, J.

— This is an appeal from a judgment overruling a demurrer to the plaintiff’s complaint which contained the following allegations, in substance: Sophia Lynch died in 1876, leaving a husband and three children, of whom the plaintiff is one and the defendant is another. The plaintiff was five years old at the time of his mother’s death, who at that time was the owner of a market stand, stocks, and household furniture. The defendant converted this property to his own use more than six years before the commencement of this action, and the plaintiff learned of such conversion one year before he brought his suit, and demanded his share of the property. His demand was refused. The plaintiff now claims possession of his share of the property, or for an accounting. The defendant demurred to the complaint on the ground — First, that it stated no cause of action; second, that there was a misjoinder of causes, plaintiff having sued both in trover and for an accounting. The action is based upon section 392 of the Code of Civil Procedure, which ’reads as follows:

“For the purpose of computing the time, within which an action must be commenced in a court of the state by the executor or administrator, to recover personal property, taken after the death of a testator or intestate, and before the issuing of letters testamentary or letters of administration; or to recover damages for taking, detaining or injuring personal property within the said period; the letters are deemed to have been issued within six years after the death of the testator or intestate. But where an action is barred by this section, any of the next of kin, legatees, or creditors who at the time of the transaction upon which it might have been founded, was within the age of twenty-one years, or insane or imprisoned on a criminal charge, may within five years after the cessation of such a disability, maintain an action to recover damages by reason thereof; in which he may recover such sum, or the value of such property, as he would have received upon the final distribution of the .estate, if an action had been seasonably commenced by the executor or administrator.”

The cause of action set up by the plaintiff in-this suit falls within the second subdivision of the foregoing section. The plan tiff is within its provision, for the reason that an action for the recovery of the property owned by the mother was barred by this section, and the plaintiff, at the time of the transaction upon which the action might have been founded, was within the age of twenty-one years. Moreover, this suit was commenced within five years after the cessation of such disability. The children of Sophia Lynch succeeded to the property which she owned at the time of her death by right of succession as her heirs at law. There is no legal presumption that the mother died testate or intestate, or that letters testamentary were ever issued upon her estate, and it was therefore unnecessary to negative either of those facts by any allegations in the plaintiff’s complaint. Neither is there any presumption that a suit was brought within six years after the death of the party by the executor or administrator. It appears from the complaint that the plaintiff became twenty-one years of age in 1892. Under the provisions of the section quoted, he had then five years in which to bring this suit. Under our construction of the section quoted, it was entirely unnecessary to state whether the plaintiff died testate or intestate, or whether any executors or administrators of her property or estate were appointed, or whether any action was commenced by them in respect to the cause of action stated in the complaint; but such facts, if they existed, are matters of defense to the action, and must be so alleged by the defendant in his defense.

The judgment should be affirmed, with costs.

All concur.  