Mead v. . Jenkins

Per Curiam. The question to be determined in this case is whether the surrogate erred in dismissing the proceedings for the sale of the real estate of the intestate, upon the ground *34 that the claim was barred by the statute of limitation. The claim was due February 11,1871, and the intestate died March 19, 1871. Letters of administration were granted April 14, 1871. The proceedings in question were commenced February 6, 1880. The administrators accounted on the 17th day of October, 1877, and the petitioner received $355 on account of his claim against said estate, being his share of the personal assets in the hands of the administrator. The limitation within which an action could have been commenced upon the plaintiff’s demand ivas six years. The term „of eighteen months after the death of a testator or intestate is not a part of the time limited for the commencement of an action against the executor or administrator. The proceedings here could not be commenced until after the accounting, and hence the statute did not commence to run until the accounting in 1877. The proceeding was commenced on February 6, 1880, about two years after the accounting, and the statute had not then rim so as to constitute a bar. The creditors could not have compelled an accounting until eighteen months after the granting of letters, and until such an accounting plaintiff could not institute these 'proceedings, and they could not be commenced until the lapse of eighteen months from the intestate’s death and such further time as intervened between the death and the granting of letters, and also such time as might be consumed in actually compelling an accounting. It may be added that the proceedings having been stayed by statutory prohibition, the time of the continuance of the stay was not a part of the time limited for the commencement of the same. (Code of Civ. Pro., § 406.) The provisions of the statute (B. S., § 60, title 4, chap. 6) that no real estate, the title to which has passed out of any heir or devisee of the deceased by conveyance or otherwise to a purchaser in good faith and for value sba.11 be sold by virtue of the provisions of this act * * * unless application be made for such sale within three years after the granting of such letters of administration, has no application to this case, for the' reason that the purchasers were notified at the sale of the plaintiff’s claim, and having pur *35 chased, with full knowledge of its existence, they cannot be considered as purchasers in good faith. It is claimed that the action against the heirs could not have been brought until after the expiration of three years, under section 53, Bevised Statutes, from the granting of letters, and that these three years should be added to the six years. Inasmuch, however, as there was error in the surrogate’s decision upon the ground already stated, it is not necessary to consider whether the statute cited relates to the proceedings to sell the real estate. The order should be affirmed, with costs. All concur. Order affirmed.