#### In re ASHHEIM’S ESTATE.

(Supreme Court, Appellate Division, First Department.

February 9, 1906.)

Executors—Proceeding eor Accounting—Limitations.

An executor who takes possession of the estate of the testator and manages the same contrary to the provisions of the will, requiring him to pay a specified sum to a trustee, cannot defeat a proceeding to compel him to account by merely showing that the proceeding was instituted after 10 years from the granting of the letters to him, so that the rights of the trustee are barred by limitations.

■Appeal from Surrogate’s Court, New York County.

Proceedings to require Aaron Cohn, executor under the will of Solomon W. Ashheim, deceased, to file- an account. Prom an order directing the executor to file same, he appeals.

Affirmed.

Argued before O’BRIEN, P. J„ and INGRAHAM, LAUGHEIN, CEARKE, and HOUGHTON, JJ.

Sol. A. Cohn, for appellant.

John De Witt Warner, for respondent.

LAUGHLIN, J.

The letters testamentary-were issued to the appellant on the 25th day of October, 1884, and they have not been revoked. The executor filed no inventory, and he has never accounted. By a codicil duly admitted to probate with the' will, the testator gave the sum of $48,000 to the United States Trust Company of the city of New York, “in trust to invest the same and to receive the interest and income thereon and to apply such income and interest to the use of” his sister Jeanette during her life and on her decease. He directed that said trust fund be distributed among such of her children as survived her and the *608then living issue of’any deceased child, "to be "divided between them per stirpes and not per capita.” The proceeding for the accounting was instituted on thé 6th day of September, 1905, by two surviving' children of a deceased child of said Jeanette Cohn, who are together' entitled to receive one-eighth of said fund. The life beneficiary of the trust fund is still living. The moving papers show that the estate that came into the hand's of the executor was more than sufficient to pay all debts, expenses, bequests, and legacies, including the trust fund of $48,000 to the trust company; but that the executor has failed, neglected,, and refused to pay over to the trust company the said sum of $48,000, and has held, controlled, and managed, and still holds, controls, and manages, the said fund contrary to the terms and provisions of the codicil. On the return day of the citation the executor filed an answer, alleging “that this proceeding was commenced after the expiration of seven years and after the expiration of ten years from the grant of letters to this respondent,” but not denying any of the facts set forth in the moving papers.

■ It is strenuously urged that, as the executor was not a trustee in the strict sense of the term, he has obtained individually, by the mere lapse of time, good title to this property that came into his hands as executor under a commission from the court by which he was required to account therefor, and that the statute of limitations is a bar to the proceeding. This court has frequently held 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. Matter of Irvin, 68 App. Div. 158, 74 N. Y. Supp. 443; Matter of Jones, 51 App. Div. 420, 64 N. Y. Supp. 667.

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, 90 N. Y. Supp. 185, affirmed 181 N. Y. 553, 74 N. E. 1120. In these cases we review the principal authorities upon which the appellant relies, and it is not necessary to distinguish them again. Here the statute of limitations may or may not be a bar. Many material facts essential to a correct decision of the question are not disclosed. The executor relies on the mere lapse of time, which alone is not a defense to a proceeding to compel him to account. Not only has -this rule been frequently promulgated by this court, but it has been finally approved by the Court of Appeals in affirming our decision in Matter of Meyer, supra, on the opinion of this court and answering in the negative the question certified:

> “In the absence oí any act of an executor repudiating his liability as trustee, is the lapse of 13 years and 9 months from the time of the issue of letters testamentary a bar to a proceeding to compel the executor to account?”

Therefore the question as to whether the right of the petitioners to compel the executor to pay over this fund to the trust company is *609barred by the statute of limitations must be left open, and the order requiring the executor to account should be affirmed, with $10 costs and disbursements. All concur.