Heath v. Grenell , 1871 N.Y. App. Div. LEXIS 141 ( 1871 )

By the Court, Johnson, J.

The only question in this case is, whether the statute of 'limitations had run against the note in question when it was presented as a claim against the estate, of which the defendant wa's the surviving administrator. The note was presented as a claim by the plaintiffs shortly prior to the 11th of July, 1868, and was disputed by the defendant on the ground that it was not a valid claim against the estate. It wasothereupon referred, according to the statute. The note was the joint note of the defendant and his intestate, William G-renell, dated March 19, 1853, payable six months after date, with use. The intestate died May 24,1859,'and had made payments of interest on the note up to September 16, 1854, which were indorsed thereon. Letters of administration were granted to the defendant and the widow of the intestate, August 11, 1859. On the 17th of January, 1860, the defendant, as one of the administrators, paid and indorsed upon the note $36.37, a portion of which was assets of the estate. This payment was made before the statute had run against the note. Six years had not then elapsed since the last payment of interest by the intestate. It may be assumed, I think, that this payment saved the obligation from the operation of the statute up to that time, within the case of McLaren v. McMartin, (36 N. Y. 88.) It is true that, so far as appears from the case, the payment was the act of the defendant, alone, without the knowledge or consent of the other administrator. But the debt was then due, and a valid demand against the estate, and it was not only his right, but his duty, to make the payment from assets in his hands. It would, I think, have been different had the statute then run against the note. The question of the right of one administrator to revive and restore a stale demand, would have arisen in that case, and this I think cannot be done either by the promise, or the act, of payment, of one of several administrators, according to the rule as now well settled.

The important question, therefore, is, whether the payment subsequently made by the agent of Mrs. Charlotte Grenell, on the note in question, had the effect to save the note from the operation of the statute up to that time. This payment was made on the 21st of April, 1864, by the agent, Wardwell, aiid by him indorsed on the note, and was of the amount of $379.62. The fund out of which it was made was not assets belonging to the estate, but belonged to Mrs. Grenell in her own right. She had about $1000, which she had obtained from a sale made by her of certain real estate which she had bid off at a foreclosure sale, upon a mortgage given by the intestate, on lands owned by him, over and above the amount paid by her. on her purchase. This amount she directed Wardwell, her son-in-law, to pay on her husband’s debts, without specifying any debts in particular. He took the fund and paid it out on the indebtedness of the intestate, paying on the note the amount before specified. It does not appear that Mrs. Grenell even knew that this amount had been paid upon the note, or that she ever knew of the existence of the note. Hpon this state of" facts, it is obvious, as the referee has found, that in making this payment, even had she directed it to be made specifically, she w-as not acting in her capacity of administrator. It was not funds of the estate, and any payment made by her with her own. money, could not bind the estate, or affect it any way, any more than if it had been the act of a stranger. She was a stranger to this demand, except in her capacity of administrator, and in the lawful use of the assets- of the estate. It could not be construed into a promise, or as indicating an intention, to revive or continue the demand against the estate.. All that could be inferred from it, legitimately, was a willingness on her part to appropriate the amount she had thus realized from the purchase, to the payment of the demand, whether still in force or not. But she gave no specific direction to pay this demand, or any part of it. The agent, in making the partial payment, exercised his own discretion in distributing the fund amongst the different claims; and had it been assets of the estate, even, I do not think the general direction could be construed into a promise or undertaking, or an intention to continúe this particular demand. But as it was not the assets of the estate, and she was not acting in her representative capacity in making or ordering the payment, it can have no bearing against the estate.

There is nothing ‘to show that as administrator she intended to save the demand from the operation of the statute. (McLaren v. McMartin, supra. Shoemaker v. Benedict, 1 Kern. 185. Winchell v. Hicks, 18 N. Y. 560. Pickett v. King, 34 Barb. 195. Deyo v. Jones, 19 Wend. 493. Roscoe v. Hall, 7 Gray, 275. Clarke v. Dutcher, 9 Cowen, 674.)

The referee was-right, therefore, in his conclusion of law, that this payment was not such a payment as would prevent the running of the statute.

The doctrine of trustees and cestuis que trust, which the appellant’s counsel seeks to apply to the case, is not applicable. It is simply a question of debtor and creditor, and whether as between them the statute has run against the Obligation. (Paff v. Kinney, 1 Bradf. 1.)

The demand had never been presented as a demand against the estate, until it was presented by the plaintiffs. This is plain from the fact merely of its presentation at the time it was disputed, and the contrary is not shown. Had it been previously presented and allowed, there was no necessity for a new presentation, or propriety in making it. When it was presented, the administrator had- a perfect right to dispute it,.as he did,-and the question was thus raised as to whether it was then a valid subsisting claim against the estate.

The appellant’s counsel contends that the partial payment made by the defendant as administrator, upon the note, from the assets of the estate in his hands, on the 17th of January, 1860, had the same effect, and placed the demand in the same situation, in which it would have been placed, had it been presented in pursuance of the notice provided for by 2 R. S. 88, § 34, and allowed by the administrators.

But this is not so. Presentation and allowance under these provisions of the statute are quite different from the voluntary partial payment by one 'administrator, from assets in his hands, not only in the form and nature of the act, but'in its legal consequences. The latter is only evidence of a new promise, from the date of which the six years limitation commences to run anew, and does not prevent the statute from commencing to run and continuing to run from that time.

[Fourth Department, General Term, at Syracuse, November 13, 1871.

The former is a proceeding under the statute by which a claim presented and allowed may be deemed as adjusted, arid its proportional share of the assets appropriated to its payment.

No question is raised as to the right of. the defendant to avail himself of the defense of the statute of limitations on this trial, in case the statute had run against the demand.

The judgment is right, and must be affirmed, with costs.

The presiding justice, having heard the case at special term, did not sit.

Johnson and Talcott, Justices.]