#### In the Matter of the Application of Henry R. C. Watson for a Compulsory Accounting of the Proceedings of Elizabeth T. Watson and Howard Ives, as Executors of the Last Will and Testament of William Watson, the Younger, Deceased. Henry R. C. Watson, Appellant; Elizabeth T. Watson and Howard Ives, as Executors, etc., Respondents.

Second Department,

June 26, 1914.

Executors and administrators — right of judgment creditor to compel accounting — Statute of Limitations —• lapse of twenty years — Code of Civil Procedure, section 376, construed.

A creditor having a judgment against executors in their representative capacity is entitled to a decree of the surrogate ordering an accounting although the executors allege that there have been no assets of the estate for twenty years prior to the commencement of the proceeding.

Section 376 of the Code of Civil Procedure, providing that a final judgment for a sum of money is conclusively presumed to have been satisfied (subject to exceptions) after the expiration of twenty years from the time when the party recovering the j udgment was first entitled to a mandate to enforce it, does not prevent a judgment creditor from awaiting an accounting of executors and then asserting his judgment.

Appeal by the petitioner, Henry E. 0. Watson, from a decree of the Surrogate’s Court of the county of Westchester, entered in the office of said surrogate on or about the 20th day of February, 1914, dismissing his petition for a compulsory accounting.

*James J. Allen,*for the appellant.

*Edward W. Davidson,*for the respondents.

Putnam, J.:

The petitioner moved for an accounting as a creditor, by virtue of ownership by assignment and survivorship of a judgment for $29,020.89, rendered in the Supreme Court and docketed against the respondents in their representative capacities in January, 1891.

The petition averred that no part of said judgment had been paid, and that no leave to issue execution against said *42executors had ever been granted by the surrogate of Westchester county, from whose court had issued the letters testamentary.

The amended answer denying knowledge or information respecting the leave to issue execution impliedly conceded nonpayment of the judgment. It went on to show that the executrix had paid legacies to the amount of $9,000 more than twenty years prior to commencement of this proceeding, *“*and the remaining $249.95 was paid and applied by the said Elizabeth T. Watson, as executrix, toward the legal expenses in probating the will.” By decree of the Surrogate’s Court, dated February 17, 1890, the sum of $726.80 was charged against the estate on account of such legal expenses of probating said will. It also denies having any assets of the estate for more than twenty years prior to the institution of these proceedings. It also sets up the presumption of payment (Code Civ. Proc. § 376) by expiration of twenty years, and asserts that hence petitioner is not a creditor entitled to take these proceedings.

In connection with a plea of the six-year limitation to call the executors to account the answer avers that the payments to the legatees (which were before the judgment) amounted to a repudiation of any alleged trust relation that • may have existed between these executors and the petitioner’s predecessors.

The reply urged that petitioner’s *status*as a creditor had been judicially established as against the executors who have not repudiated or renounced their stewardship herein;, that the statutory presumption and limitation, also set up, never began to run as against the judgment creditor, or his successor, this petitioner herein.

Upon a hearing upon these pleadings, the learned surrogate dismissed the petition, on the ground that by the lapse • of twenty years the judgment is conclusively presumed to be paid.

Section 376 of the Code of Civil Procedure reads: “A final judgment or decree for a sum of money, or directing the payment of a sum of money, heretofore rendered in a Surrogate’s Court of the State, or heretofore or hereafter rendered, in a court of record within the United States, or elsewhere, or hereafter docketed * * * is presumed to be paid and satisfied, after the expiration of twenty years from the time when the *43party recovering it was first entitled to a mandate to enforce it. This presumption is conclusive ” (except case of part payment, or acknowledgment in writing).

In the Revised Statutes this period by which a judgment should be presumed to be paid ran “from the time of the signing and filing such judgment or decree.” (R. S. pt. 3, chap. 4, tit. 2, art. 5, § 47; 2 R. S. 301, § 47.)

The Code of Civil Procedure (Throop’s Code) first enacted this condition that the judgment creditor should be “entitled to a mandate to enforce” the judgment. This expression “ mandate to enforce ” is tobe read with chapter 2 of the Code, which deals expressly, with execution of civil mandates. This change from the Revised Statutes indicates: *First.*The period of limitation no longer runs from recovery and entry of judgment, as respondent contends. *Second.*The expression “entitled to a mandate to enforce” the judgment refers to, and only to, an execution issued to a sheriff, or a like command to one in a ministerial office. In dealing with this section, this court, by Woodward, J., said: “A mandate in practice is a judicial command or precept issued by a court or magistrate directing the proper officer to enforce a judgment, sentence or decree.” *(Seaman*v. *Clarke,*60 App. Div. 416, 421.) Hence, there must not only be an order judicially given, but to be a mandate such order must go to an administrative officer, as a sheriff or coroner, who, under it, is to perform some act carrying out a decree or judgment. Hence, the surrogate’s citation or order to show cause (Code Civ. Proc. § 2727) is not a “mandate” within section 376 of the Code of Civil Procedure. Therefore, the words of the section are as if the text had been “ twenty years from the time when the party recovering the judgment was first entitled to an execution or other decree or order to enforce it.”

The reform introduced by Mr. Throop was designed to limit the need for execution against executors. His report stated that he aimed to “render the actual issuing of an execution unnecessary, in the great majority of cases. In general, there can be no necessity for such a step, unless the executor or administrator is perverse.” (Throop’s Code Civ. Proc. [ed. 1880] § 1826, note.)

*44The surrogate is to direct the administration, and by his order alone can an execution be issued against executors. (Code Civ. Proc. §§ 1825, 1826.) If granted, the execution may be only for the judgment creditor’s proportionate part of all the assets. (Id. § 1826.) In this proceeding the fact of nonpayment is admitted. The answer showing substantially no assets after February 17, 1890, has by that negative fact taken away any ground by which the judgment creditor would be entitled to' have any execution, as such leave would be vain where there were no assets or property to be levied upon.

The judgment against executors in their representative capacity differs from other judgments. It does little more than settle and liquidate the amount of the liability. The estate is still impounded by the law and remains under the direction and control of the surrogate. *(Willis*v. *Sharp,*115 N. Y. 396; *Schmitz*v. *Langhaar,*88 id. 503, 511, 512.) Can one be said to be entitled to a mandate to enforce it, when the issue of the mandate rests in the discretion of the Surrogate’s Court, and no ground to call for that exercise of discretion appears, but instead the facts shown by the executors themselves present a sure ground to deny such leave for a useless form? *(Belfer*v. *Ludlow,*143 App. Div. 147, 149.)

The judgment creditor, therefore, was not prevented by Code of Civil Procedure (§ 376) from awaiting the accounting of the executors and then asserting his judgment. The learned surrogate did not refer to the attempt to interpose the six-year Statute of Limitations as to this proceeding for an accounting by the executors. Eecent decisions of the Court of Appeals are to the effect that, because of the fiduciary relation, the mere lapse of time should not debar the remedy of accounting. 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.

*45I recommend that the surrogate’s decree be reversed and the application for an accounting be granted, with costs.

Jenks, P. J., Burr, Rich and Stapleton, JJ., concurred.

Decree of the Surrogate’s Court of Westchester county reversed, and application for an accounting granted, with costs.