Cole v. Terpenning , 32 N.Y. Sup. Ct. 482 ( 1881 )

Learned, P. J.:

The will of the testator was admitted to probate November 6, 1847, and letters testamentary thereon, issued that day to Terpenning, now the surviving executor, and another. The will gave to Delilah Cole $400, to be paid her by the testator’s two sons, John and Ezekiel (who were the executors), share and share alike, one year and one day after the testator’s decease. The will gave John and Ezekiel severally certain lands on condition that they paid the legacies, etc., and made them residuary legatees, charging them to pay the debts and legacies. Delilah Cole filed a petition October 2, 1879, for an accounting and for the payment of her legacy aforesaid. On the hearing it was admitted, in addition to the above facts, that the testator left a large personal estate sufficient to pay all debts, funeral expenses and legacies; that the executors accepted the trust and entered on their duties as executors; that Delilah Cole, after the expiration of eighteen months since their appointment, had applied for an account and that the executor had refused.

The surrogate denied the prayer of the petition on the ground of the lapse of time (more than thirty years), and Delilah Cole appeals.

In the case of House v. Agate (3 Redf., 307), it was decided that a petition in the surrogate’s court to compel an executor to pay a legacy, must be filed within the time in which actions of a similar character are required to^ be commenced in courts of common law or of equity.

The same doctrine is laid down in Clock v. Chadeagne (17 N. Y. Sup. Ct. [10 Hun], 97); in McCartee v. Camel (1 Barb. Ch., 455); in Clark v. Ford (1 Abb. Ct. App. Dec., 359), and in Smith v. Remington (42 Barb., 75).

These repeated decisions of recent date have settled the question, and it is unnecessary to discuss older authorities, or to examine the law of limitations between trustees and eestuis que trust, properly so called.

• The decree of the surrogate is affirmed, with costs against appellant.

The case of Hotaling v. Terpenning is similar to the preceding. The difference is that the legacy of $400 given after one year and one day from the decease of the testator to his daughter Rachael {now Rachael Iiotaling), was to be paid her when she came of age, or at her marriage if she married sooner, and meantime it was to accumulate. It was, however, absolutely to be paid when she came of age, unless she previously died. She married January 21,1841, and came of age January 1, 1849. Then, at all events, the legacy, with its accumulations, was to be paid by the executors. The legatee filed her petition for payment March 4, 1880, more than thirty years after the time when the legacy was payable. There was no trust, because she was married before the probate of the will, probably before the testator’s death, and certainly before the one year and one day after his decease provided for in the will, and therefore she was entitled to receive the legacy at once without any waiting for accumulation. The case of Robison v. Robison (5 Lans., 165), therefore does not apply.

The decree should be affirmed, with costs against appellant.

Present — Learned, P. J.; Bookes and Boardman, JJ.

Decree of surrogate affirmed in each case, with costs against appellant.