Citation Numbers: 96 A.D. 561, 89 N.Y.S. 569
Judges: Spring, Stover
Filed Date: 7/15/1904
Status: Precedential
Modified Date: 1/13/2023
Letters testamentary,upon the estate of Elizabeth S. Campbell, deceased, were issued to George R. Edgerton on the 1st day of July, 1895. The deceased left her surviving a husband, Henry Campbell, who has since died, and one child, Mary J. Raymer,- of full age. During the lifetime of said Henry Campbell the executor tendered to him $150 in satisfaction of his claim to the statutory exemptions in the personal estate of his wife, Elizabeth S. Campbell, but the said Henry Campbell declined to receive said sum, stating that he did not want anything from the estate of his deceased wife.
“Floyd, N. Y., Oct. 29, 1901.
“ Mary E. Cooper having* this day delivered and turned over to me certain property heretofore in the possession of the late Henry Campbell, which I claim to be the owner of.
“(Signed) MINNIE J. RAYMER.”
Mary E. Cooper, executrix of Henry Campbell, asked for an order in this proceeding requiring the executor to set apart to her as such executrix the exempt property to which Henry Campbell, the surviving husband of Elizabeth S. Campbell, was entitled. The surrogate denied the application on the ground that the same was not made within six years after the expiration of eighteen months after the issuance of letters testamentary upon the estate of Elizabeth S. Campbell.
We think this was a liability created by statute and as such was governed by the six years’ Statute of Limitations. But it is claimed that under section 2724 of the Code of Civil Procedure, which provides, among other things, that “ The decree, made on a judicial settlement of the account of an executor or administrator, may award to a surviving husband, wife, or child, the same relief which may be awarded in his or her favor, on a petition presented as prescribed in this section,” a surrogate has power on the judicial settlement of the account of an executor to decree that such executor set apart the exemptions to which a surviving husband is entitled. The same section provides that upon the failure of an executor or administrator to set apart exempt property for a surviving husband, wife or child,
The claim of the appellant is, first, that by reason of this provision the character of the proceeding is changed from that of a quasi legal action or proceeding, to an equitable proceeding, and that the ten-year Statute of Limitations, applicable to equitable actions, governs, rather than the one governing legal proceedings. But we think that this is not the fair deduction to be drawn from the two provisions of the statute. A strict rendering of the statute would confine the application to the husband, wife or child of the decedent. The provision is for their benefit and not for the benefit of their estate. The property set apart was for the sole benefit of Henry Campbell. He had a right to waive the exemption and decline to receive it, as he did. It may be that had Henry Campbell survived and within the six years had commenced proceedings to have the exempt property set apart, he might have been able to do so, but having failed during his lifetime to enforce such right or to have reduced- the property to possession, it may be well questioned whether any right survived on behalf of his executrix, and the statute nowhere gives his executrix the right to intervene upon an accounting and have the property set apart for the benefit of his estate; but it is only for the benefit of the husband, wife or children. And even were it not so, were the executrix of the husband pntitled to the benefit of the exemption under the statute, we think that her claim is subject to any and all defenses which may exist against it as.fully as though she had brought an action'at law. Section 2716 of the Code of Civil Procedure, in giving her the remedy to compel the filing of an inventory, leaves, her with a- full legal remedy for the enforcement of her claim, and, under well-known principles, without standing in a court of equity or in any forum where the law should be administered under the rules of equity. We must assume that the Legislature intended that if she had not foreclosed herself by any laches or other act or acts on her part, then she might by an accounting enforce her claim for exemption, it being assumed that in the ordinary administration of the surrogate’s office the accounting would be had within six years, and thus an opportunity would be presented to her to enforce her claim. But not having availed
In any view of this case, the petitioner is not entitled to the property and the decision of the surrogate was right.
McLennan, P. J., concurred; concurring memorandum by Spring, J., in which Williams and Hiscock, JJ., concurred.
Sic.