McCrary v. Tasker

Day, J. — James Tasker died March 12th, 1859. His will was probated April 15th, 1859,. and on that day John W. Ogden was appointed executor of the estate. He filed an inventory of the decedent’s property the 27th day of May, 1859, which contains the lots in controversy. On the 20th of August, 1860, the executor sold a number of lots belonging to [258] the estate, and applied the proceeds to the payment of the debts. In October, 1865, be made his final report and was discharged. The present administrator was appointed October 25th, 1872, and he makes application to sell the real estate in controversy. From these dates it appears that this application is made more than thirteen years after the death of James Tasker, and the appointment of his executor, and more than seven years after this executor had made his final report and been discharged. The application is based solely upon the ground that there are debts which the estate owed, and real estate which belonged to the decedent at his death which has not been appropriated to the payment of debts. Our statute contains no limitation of the'time within which an executor must make application for the sale of real estate for the payment of debts. But it is manifest that the right ought not to continue without limitation. There must be some time when the heirs may take possession of the real estate, and safely occupy, improve, and dispose of it as their own. Although this question has never before arisen in this State, it has been discussed and carefully considered in several of the sister states. In Dorman v. Lane, 1 Gill, 143 (148), the Supreme Court of Illinois adopted the period of limitation within which action must be brought against an executor, and held, “that after the expiration of one year from the final settlement of the accounts of the intestate in the court of probate by the administrator, no application on the part of such administrator to sell the real estate of the intestate, to satisfy debts still due, will be sustained, except the circumstances of the particular case may be of such a peculiar character as to make it the duty of a court of equity to depart from this general rule.” That case is exactly in point, for'in that, as in the one at bar, the debt on account of which the sale was sought had been established against the estate, and a former order of sale of real estate had been made. In Hall v. Woodman, 49 N. H., 295, the same rule was applied, and it was held that license to sell should not be granted after the expiration of three years from the granting of administration, unless for special reasons, and that when special reasons are shown, the [259] application must be made within a reasonable time. In Massachusetts the limitation of actions against an executor is four years. In ex parte Allen, 15 Mass., 47, it was held that an executor, who pays debts of the testator beyond the amount of personal assets-within the four years, cannot, after the expiration of four years, obtain a license for his reimbursement, unless the estate remains, at the time of his application, as it was at the death of the testator, without partition among the heirs or devisees, and without conveyance, nor unless also he makes the application within a reasonable time after paying the debts: In that case the application was made six years after paying the debts, and upon that ground, amongst others, it was denied. See also Thompson v. Brown, 17 Mass., 171; Heath v. Wells, 5 Pick., 140; Richmond, Petitioner, etc., 2 Pickering, 567. In Maine, substantially the same rule has been adopted. Nowell v. Nowell, 8 Greenleaf, 220; Smith v. Dutton, 16 Maine, 308. The statutes of New York provide that after the expiration of one year after the executor has assumed his trust, he may be called upon to pay legacies and make distribution among the next of kin, and in Moore v. White, 6 Johnson’s Chy., 360 (377), it was held that “the executor or administrator ought to be ready to apply, and ought to make his application for license to sell real estate, within one year after he has entered upon the trust, and that every subsequent application, unless under peculiar circumstances, and with some reasonable cause for delay, may consistently with sound discretion, and the spirit and policy of the act, be adjudged out of season, and rejected.” See also Jackson v. Robinson, 4 Wendell, 487, in which it was held that the lapse of fourteen years between the granting of administration and the period when application was made for the sale of real property should, without explanation, have been a reason for the surrogate to reject the application, but that his order was not void, and the error could be corrected only on appeal. See also Gilchrist v. Rea, 9 Paige’s Chancery, 66 (73). [260] The law in force at the time the rights in controversy accrued provides that all claims not filed and proved within one year and a half of the giving of notice of the appointment of the executor are forever barred unless the claim is pending in court, or unless certain circumstances entitle the claimant to equitable relief. Revision, See. 2405. Section 2389 of the Revision provides that the executors shall publish a notice of their appointment within thirty days after the receipt of their commission. The facts do not show when the executor gave this notice, but as he immediately entered upon the execution of his trust and proceeded to sell real estate and pay the debts of the estate, it will, in the absence of any showing to the contrary, be presumed that in this respect he complied with the law. i adminisby^Tappiica-e tion. By analogy to the rule established in Maine, New Hampshire, Massachusetts, and Illinois, we are disposed to hold that, as a general hi this state, an application of ^he executor to sell real estate of the decedent for the payment of debts will not be sustained unless made within eighteen months from the time the executor gives notice of his appointment, unless the peculiar circumstances of the case are of such character as to make it the duty of a court of equity to depart from this general rule, and that, under such circumstances, the application must be made within a reasonable time. Applying this rule to the present case, the application for an order to sell the real estate was properly denied. Thirteen years elapsed after the executor gave hotice of his appointment before this application was made. No excuse for the delay is shown, and no fact is stated entitling the administrator to equitable relief. The inventory filed a few '.months after the death of the testator contains the real estate 'in controversy as forming a p>art of the estate. It is true there has been no alienation of the estate. But the evidence 1 shows that Catherine Tasker has improved it, and that she and Clarissa Crossen, the devisee of part of it, have occupied it, and supposed it theirs. If we could even hold that the circumstances are such as [261] •would justify the extension of the time for making the application beyond the lapse of eighteen months, still we are of opinion that, the delay of eleven and one-half years from that time, without excuse or explanation, is unreasonable. Affirmed.