Woolley v. Stewart, 222 N.Y. 347, 354, 118 N.E. 847, 849, reversing Id., 169 App. Div. 678, 685, 155 N.Y.S. 169, 174. See also Lammer v. Stoddard, 103 N.Y. 672, 9 N.E. 328; Spallholz v. Sheldon, 216 N.Y. 205, 110 N.E. 431; Bankers Trust Co. v. Dennis, 256 App. Div. 495, 10 N.Y.S. 2d 710, affirmed 282 N.Y. 635, 25 N.E.2d 981. It may also be the case that repudiation necessary to make the period of limitation begin to run cannot be established by a showing of mere lapse of time, cf. Matter of Meyer's Estate, 98 App. Div. 7, 90 N.Y.S. 185, affirmed 181 N.Y. 553, 74 N.E. 1120, but that an open assumption of ownership by the trustee or denial of rights of the beneficiary made known to the latter is necessary. Cf. Reitz v. Reitz, 80 N.Y. 538; Hartford Life Insurance Co. v. Douds, 103 Ohio St. 398, 136 N.E. 274. In the instant case, there is sufficient evidence to indicate that the statute of limitations began to run more than ten years before the commencement of this action.
See, e.g., In re Barabash Estate, 31 N.Y.2d 76, 334 N.Y.S.2d 890 (1972) (mere listing in letter of administration by administrator of estate that he is the sole distributee is not sufficient to constitute repudiation of trust so as to commence running of statute of limitations); Matter of Meyer's Estate, 98 A.D. 7, 90 N.Y.S. 185 (1st Dept 1904) (statute of limitations will only begin to run in favor of defendant, who took possession of property of testator and assumed duties of executor, at the time he openly repudiates the trust); Matter of the Estate of Hyman Alpert, 234 A.D.2d 150, 651 N.Y.S.2d 451 (1st Dept 1996) (the six-year statute of limitations does not commence to run in favor of trustee until he openly repudiates the trust). Plaintiffs' argument that Fischer was an actual trustee by virtue of his role as director of the Corporations is also flawed.
We conclude from the evidence that the administrator repudiated his trust as administrator to the knowledge of Mildred Hubbard on August 22, 1921, and that the ten-year Statute of Limitations is now a bar to the proceeding to compel him to account. ( Matter of Deitz, 134 Misc. 393, 397; Matter of Asheim, 111 App. Div. 176; affd., 185 N.Y. 609; Matter of Meyer, 98 App. Div. 7; affd., 181 N.Y. 553; Matter of Beard, 141 Misc. 888; Matter of Menahan, 224 App. Div. 139; Matter of Jacobs, 257 id. 28; Matter of Griffin, 170 Misc. 1066.) All concur. (The decree judicially settles the accounts of an administrator.
The statutory period, however, does not begin to run until the administrator has openly repudiated his obligation to administer the estate. ( Matter of Meyer, 98 App. Div. 7; affd., 181 N.Y. 553; Matter of Menahan, 224 App. Div. 139.
The daughter, the sole next of kin, was the beneficiary of this trust. Patrick, having occupied such a trust relation, could not start the statute running against the right of the beneficiary to compel him to render an account until by some act sufficient for the purpose he repudiated his liability as trustee. ( Matter of Meyer, 98 App. Div. 7; affd., on opinion below, 181 N.Y. 553.) The principle that the Statute of Limitations does not commence to run in favor of a trustee until he openly repudiates the trust and asserts and exercises individual ownership over the trust property was applied to an executor in Matter of Ashheim ( 111 App. Div. 176). (See, also, Matter of Irvin, supra, at p. 161.
That an executor occupies a trust relation toward those entitled to the estate, irrespective of the provisions of the will, and that no Statute of Limitations commences to run in favor of such executor, until disavowed of the trust by him, seems settled. ( Matter of Meyer, 98 App. Div. 7.) There is no doubt but that, assuming the fraud to be established, Paulina may be charged as a trustee by reason of her wrongdoing, and under such circumstances she would be what is ordinarily described as a constructive trustee.
As has been indicated, the reservation in the deed of the plaintiff was ineffectual in reserving to itself any right of action against the railway companies. It did, however, impose a duty upon the grantee, and subsequent grantees taking the property with notice of the reservation, to pay to the plaintiff whatever sums might be recovered by reason of the impairment of the easements of light, air and access. Whatever sum was paid to the defendants for this purpose they received and held as trustees for the plaintiff, and while it is true that the sum paid was received by the defendants in 1899 — more than ten years prior to the commencement of the action — nevertheless, the plaintiff had no knowledge of that fact until 1910, and the statute did not begin to run until that time. (Code Civ. Proc. § 410; Matter of Camp, 126 N.Y. 377; Matter of Ashheim, 111 App. Div. 176; affd., 185 N.Y. 609; Matter of Meyer, 98 App. Div. 7; affd., 181 N.Y. 553.
The accounting is to be ordered, leaving such questions thereafter to be determined in the proceedings. ( Matter of Meyer, 98 App. Div. 7; affd., 181 N.Y. 553; Matter of Ashheim, 111 App. Div. 176; affd., 185 N.Y. 609.) Of course the averment that the executors have repudiated the trust is but a conclusion of law and cannot avail, without strict proof of such act by one holding a fiduciary relation, as does an executor toward a judgment creditor.
( Matter of Irvin, 68 App. Div. 158; Matter of Jones, 51 id. 420.) We have also in the interest of honesty extended the rule by analogy to the case of executors who are trustees in a sense, even though they be not, strictly speaking, trustees; and we have established the rule that unless the facts, upon which the running of the Statute of Limitations depends, are clear and uncontroverted, mere lapse of time is not a bar to the accounting, and that the question as to whether the Statute of Limitations is a bar to any claim made by the petitioners should not be decided before the accounting is had. ( Matter of Irvin, supra; Matter of Meyer, 98 App. Div. 7; affd., 181 N.Y. 553.