In re the Estate of Rainey , 26 N.Y.S. 892 ( 1893 )

Coleman, S.

At the time of the appointment of the receiver the legal title to the estate of the deceased, was vested in her administrators, but her next of lcin had an equitable interest in so much of the property as should remain after the payment of her debts and the expenses of the administration. This equitable interest is property which could be legally assigned by the next of kin, even before settlement of the administrators’ account, and is property which would pass by operation of law to a receiver, duly appointed.

By the appointment of the receiver the interest of Samuel R. Whitten in the estate of the deceased, as one of her next of kin, was severed from his interest and duty as an administrator of the estate, and no improper act of his thereafter could defeat or prejudice the right which he had had as one of the next of kin. In other words, his act of allowing the whole of his father’s claim, even though an honest debt of the deceased, when he should have only admitted so much of it as was not barred by the statute, cannot estop the receiver, as the representative of his interest in the estate, from objecting to his account, because of any theory that the receiver would be debarred from complaining of the act of the person through whom he received his title. It Was a duty which the law imposed upon the administrators to plead the statute against so much of the claim of Frank Whitten as was barred by limitation, and, having failed to do this, they can only be credited upon this accounting with the payment of so much as was a legal claim against this estate.

John R. Whitten, the other next of kin, consenting to the account as filed, the administrators will, therefore, only be charged upon this accounting with $453.20, Samuel R.’s distributive interest.