
    MATTER OF NICHOLES.
    
      Niagara, Surrogate's Court ;
    
      November, 1889.
    1. Limitations; special proceedings.] Section 414 of Chap. II, Code Civ. Pro. requiring the word “ action ” to be construed whenever necessary as including a special proceeding, and declaring that chapter to contain the only limitation existing for such proceedings,—is intended to limit the remedy in surrogate’s courts just as absolutely as the various remedies in other courts are limited, and the chapter must therefore be read as if the words “ special proceeding” were substituted whenever the word “ action ” occurs.
    
      2. Same ; accounting of administrator.] Code Civ. Pro.—requiring an action upon a “ contract, allegation or liability ” to be brought within six years,—applies to the duty of an administrator to account; and a proceeding brought by an executor of a deceased surety on the hond of an administrator to compel an accounting, does not come within the provisions of section 381, relating to the time when action may be brought on sealed instruments. The proceeding is not based on the bond ; the obligation to account is of a broader nature.
    
    3. Administrators; trustees.] Administrators and executors are not to be considered trustees in the sense that the statute of limitations does not run in favor of trustees.
    Application to compel administratrix to render a final account.
    
      
      L. F. and G. W. Bowen, for petitioner.
    
      J. E. and C. W. Pound, for administratrix
    
      
       Compare Matter of Dunham, 22 Abb. N. C. 479, and note.
    
   A. K. Potter (County Judge, acting as Surrogate).

This is a special proceeding instituted by the petitioner, Mark A. Nicholls, to compel the administratrix to render her final account.

Mrs. Lull was appointed administratrix of her husband’s estate, April 19,1869.

Silas H. Marks became one of her sureties on the bond given by her as administratrix at that time. Marks has since died, and the petitioner is executor of his will, and instituted this proceeding under section 2726 of the Code.

No account has ever been rendered by the administratrix.

A petition having been filed, and a citation issued February 11, 1889, the administratrix interposed an answer on the return day setting up the statutory limitation of six years, and also the ten year statute which she urges as a bar to the petitioner’s right to maintain this proceeding, and to this-answer the petitioner demurred. This presents the question whether the Code has put a limitation upon a proceeding of this kind in surrogates’ court, and if so what it is.

Chapter IV. of the Code, provides in terms for the limitations of actions, but the last clause of section 414, requires the word action “ to be construed, when it is necessary so to do, as including a special proceeding.” The same section also declares that chapter to contain the only limitation existing for such proceedings.

This provision from its language and context seems intended to limit the remedy in surrogate’s courts, just as absolutely as the various remedies in other courts are limited ; and the chapter must therefore be read as if the words “ special proceeding ” were substituted wherever the word occurs.

The duty of an administrator to account is an “ obligation or liability, expressed or implied, ” within the first subdivision of section 382.

Doubtless the word “ obligation ” has long been used in a restricted legal sense, being applied generally to some instance providing for the payment of money in the nature of a bond, recognizance, etc.

But the context indicates that it is used here in a broader sense. The word contract which precedes it in the context, would cover every case of “obligation” within this limited sense, and it seems plain that the words “ obligation or liability ” were intended to enlarge the scope of the provision beyond what the word “ contract ” would give to it; the definition given by Bouvier and Webster are quite broad enough to cover the duty of an administrator to account'.

In the provision relating to arrest, under the old Code, (§ 179) the word “ obligation ” was used, and it was there held to be used in its broad sense, including legal duties (Crandall v. Bryan, 15 How. 48, 55).

The word liability does not seem to be used in quite as broad a sense as the word obligation in general use, and yet the two words are used synonimously.

The following authorities tend to support the construction here given, though they did not arise under the Code as it now is (Matter of Van Epps, 64 How. Pr. 464; Cole v. Terpenning, 25 Hun, 475, 482 ; Leroy v. Bayard, 3 Bradf. 228; Warren v. Paff, 4 Id. 260; Loder v. Hatfield, 71 N. Y. 92).

But if this section does not cover this proceeding, certainly section 388, which provides a ten-year limitation in all eases not specially provided for, is broad enough, and for the purposes here it does not matter which section is invoked.

The petitioner urges that the twenty-year limitation 381) is the one which covers this^ proceeding if any one does, which he denies.

If this proceeding was based upon the bond upon which M.arks was surety, assuming it to be in the usual form, this claim would be plausible, as that bond doubtless provided that the administratrix should obey the decree of the surrogate, and he is authorized to require her to account. But this duty of accounting does not rest on that obligation. It exists independently of any such contract liability. It is also claimed by the petitioner that the administratrix is a trustee and so the statute does not run. But the courts have repeatedly held that administrators aud executors are not in such sense trustees as to bring them within that rule (Cotter v. Quinlan, 2 Darn. 29). See, also, Clock v. Chadeagne, 10 Hun, 97; Clark v. Ford, 1 Abb. Ct. App. Dec. 359; in which eases it was held that the six-year statute protected an administrator or executor as against next of kin or legatees, which could not be if the technical rule as to trusts applied to them.

Section 1819 of the Code does not seem to interfere with this limitation of such proceeding.

Doubtless an action at law, after demand, could be maintained by a next of kin for his distributive share of this estate. But the bond required in such case does not bind the sureties to respond to a judgment of a court of law or equity, and so the liability of the sureties is not extended in duration by that provision.

The demurrer must be overruled and an order will be .entered accordingly.  