Opinion
March Term, 1899.
Daniel T. O'Brien, for the petitioner, appellant.
Robert H. Wilson, for the administrator, respondent.
In Matter of Taylor ( 30 App. Div. 213) we held, in an opinion written by the present writer, that where funds had come into the hands of an administratrix, for which she had never accounted, and she had not publicly and officially renounced her trust, the Statute of Limitations had not commenced to run in her favor. In our consideration of that case we overlooked Matter of Rogers ( 153 N.Y. 316) where it was held that a proceeding to compel an administrator to account is controlled by the ten-year Statute of Limitations applicable to suits in equity.
The orderly administration of justice and obedience to authority compel us to say that our decision in Matter of Taylor was erroneous, and our decision of the present appeal must follow the decision in Matter of Rogers.
Sarah E. Longbotham died in 1880, and letters of administration on her estate were granted to her husband in the same year, but he has never filed any account of his proceedings. The present proceeding was not instituted till November, 1898, eighteen years after the appointment of the administrator.
The surrogate, on the authority of the Rogers case, held that the Statute of Limitations operated, and dismissed the proceedings.
The decree must be affirmed, with costs.
All concurred.
Order of the surrogate of the county of Kings affirmed, with ten dollars costs and disbursements.