In re the Estate of Van Voorhees , 55 Misc. 185 ( 1907 )

Ostrander, S.

The prayers of the petitions are two-fold.

1. That Melbern’s representatives render an account, a proceeding under section 2726 of the Code.

2. That they be directed to pay petitioner’s claim, a proceeding under section 2722, Code.

Either proceeding may be set in motion by a creditor, and neither petitioner has any standing in this matter, except as a creditor.

As a defense to both branches of the petition, it is claimed by the representatives of Melbern that the claims are barred by the Statute of Limitations, and that the remedies are similarly barred even though the claims had been established.

As a further defense to so much of the proceedings as are founded upon section 2722, it is claimed by the administrators that their answers set forth facts which show that it is doubtful whether the petitioners’ claims are valid and legal and deny their validity, and also that there is not property of the estate which may be applied to payment of petitioners’ claims without injuriously affecting the rights of others entitled to prior or equal payment.

If the claims are barred by the Statute of Limitations, this puts an end to the rights of petitioners as creditors of the estate and ends the matter. Likewise if the claims were established, but the statute has run against the remedy by accounting or for payment, there is an end of the case.

It is not asserted that there is any invalidity of the claims, except in so far as they are barred by lapse of time; and if they be not so barred we come, so far as the proceeding under section 2722 is concerned, to a question of fact, whether there is sufficient property of the estate to meet these claims, without injury to others similarly situated.

Are the claims barred ?

As to the Dater claim. April 14, 1892, Melbern Van Voorhees made the $600 note, which fell due April 15A8, 1892.

July 20, 1896, interest was indorsed (as the claim was verified by Dater August 14, 1897, within six years from the date of the note, showing this indorsement, the indorsement was against his interest and is competent evidence).

March 10, 1897, Melbern died.

March 16, 1897, Belle C. Van Voorhees was appointed administratrix.

December 18, 1904, Belle C. Van Voorhees died.

July 24, 1905, Mary Wetsel and Bryer were appointed administrators de bonis non.

March 14, 1907, this proceeding was commenced.

Between the last payment of interest and Melbern’s death, seven months, twenty days elapsed. From Melbem’s death till Belle’s death, seven years, nine months, eight days elapsed, and from Melbem’s death to the commencement of this proceeding, ten years, four days elapsed.

As to the claim of the Manufacturer’s Bank:

April 6-9, 1897, one $200 note fell due and from then till Belle O.’s death was seven years, eight months, nine days; and from the due date of said note to the commencement of this proceeding, nine years, eleven months, five days intervened.

April 10-13, 1897, the other $200 note fell due. From then till Belle O.’s death was seven years, eight months, eight days; and until the commencement of this proceeding, was nine years, eleven months, four days.

The statute had begun to run against the Dater claim before Melbern’s death, and continued to run thereafter, except so far as it was stayed by the provisions of section 403 of the Code, by which eighteen months after the death of Melbern is declared, to be no part of the time limited for the commencement of an action against the administrator. Hall v. Brennan, 140 N. Y. 409; Riley v. Riley, 141 id. 409.

On January 20, 1904, seven years and six months had elapsed since the Dater note fell due. Belle C. Van Voorhees, administratrix of Melbern, was then living and acting, and on that date action upon this note against the estate became barred unless it was saved by some further provision of law. Upon this argument it was claimed by petitioner’s counsel that the Dater claim was presented to Belle C. as administratrix, and never rejected by her, and that it thereby became an established claim against the estate. There is nothing in the pleadings to show when it was presented to her, whether before or after seven years and six months had elapsed, since the death of Melbern. An examination of the records of the surrogate’s office fails to disclose any order for the publication of a notice to creditors by said Belle O. as such administratrix, as required by section 2718 of the Code.

It was held in the Matter of Quinlan, 2 Dem. 29, that a payment or written acknowledgment or promise to pay signed by the representatives is the only competent evidence of a new or continuing contract whereby to take the case out of the Statute-of Limitations. (See also Schutz v. Morette, 146 N. Y. 137.) There is no allegation that Belle ‘0. or any representative of* Melbern did more than to receive the claim presented and remain quiescent concerning it. It has been frequently held that mere silence on the part of the representatives does not authorize the inference that the claim has been admitted. Redf. Surr. Pr., § 648, and cases cited; Matter of Pierson, 19 App. Div. 478-479; Matter of Callahan, 152 N. Y. 320; Schutz v. Morette, 146 id. 137-143; Matter of Edmonds, 47 App. Div. 229. See also Matter of Quinlan, 2 Dem. 29-36.

Nothing having occurred to suspend the running of the Statute of Limitations, the Dater note was barred as a claim against the estate of Melbern on January 20, 1904; and, after that date, neither Belle C. as administratrix nor any other representative of Melbern had any authority to revive it as a claim against his estate, but it became the duty of said Belle C. and her successors to interpose the defense of the Statute of Limitations to it.

It is contended by petitioners that the representatives of Melbern were trustees for the creditors, and that, by receiving and failing to reject the claim, Belle C., as such administratrix, ipso facto, appropriated so much of the estate to the payment of the claim and that, as she was a trustee, the statute would not commence to run against her or her successors until she or they repudiated the trust.

This contention assumes that her failure expressly to reject the claim amounted to its establishment, and suspended the statute of Limitations, a proposition which I cannot indorse. An administrator is not solely a trustee for creditors, but represents also the next of kin, who can insist on his interposing every legal defense to any alleged claim against the estate. Cotter v. Quinlan, 2 Dem. 22. See also Matter of Miller, 15 Misc. Rep. 556, 562.

There is a broad distinction between the establishment of a right to participate at all, as a creditor, in an estate, and the right to maintain a proceeding for an accounting by the administrator at the instance of one whose rights as a creditor are established. To an attempt at the establishment of the status of creditor it is the duty of the representative to interpose every defense legally available, including the Statute of Limitations. Whether, when once this right is established, a Statute of Limitations begins to run in favor of the administrator before he has repudiated his trust is a question which need not be decided Tere, although many cases so hold. Matter of Kirkpatrick, 9 Misc. Rep. 228; Matter of Miller, 15 id. 556; Matter of Boylan, 25 id. 281; Matter of Cruikshank, 40 id. 325; Matter of Rogers, 153 N. Y. 316-322.

Numerous cases are cited by the petitioners in which the representative was the trustee of an express trust, as testamentary trustee, or in which the rights of next of kin were involved, where he had received property of the estate and resisted an accounting, in which it was held that the Statute of Limitations began to run only upon his repudiation of the trust.

But in this case Dater’s claim against the estate was barred, he never established the status of creditor, and his representative can have no standing to call the administrators to account; and it follows that the petition must be dismissed.

Substantially the same conditions exist in reference to the claim of the Manufacturer’s Bank of Cohoes, and a similar disposition should be made of that case.

Petitions dismissed, with costs.