Partridge v. Mitchell
New York Court of Chancery
Application by the administrator of John Mitchell, deceased, that a balance paid into court by a master on foreclosure and sale, might be paid out to the creditors of the said John Mitchell. A reference was had; and the guardian ad litem of the infant children of this John Mitchell took the objection that some of the debts were barred by the statute of limitations; and, on that ground, excepted to a master’s report. The point now came before the court.
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Application by the administrator of John Mitchell, deceased, that a balance paid into court by a master on foreclosure and sale, might be paid out to the creditors of the said John Mitchell. A reference was had; and the guardian ad litem of the infant children of this John Mitchell took the objection that some of the debts were barred by the statute of limitations; and, on that ground, excepted to a master’s report. The point now came before the court. In support of the report, it was insisted, that, as the administrator had assented to the debt, the statute was no bar.
1Opinion of the Court
The Vice-Chancellor :
Although an executor or administrator may not be bound to plead or set up the statute of limitations, they are at liberty to do so, if they think proper. It is competent for any party in interest, as, for instance, a residuary legatee or next of kin to take the objection without the concurrence of the executor or administrator; and this may be done even where the latter refuses to set it up. It can be done in the master’s office, upon a reference to take an account of debts and of the administration. The case of Shewen v. Vanderhorst, 1 Russ. & M. 347, is directly in…
2Cited by5 opinions
- Smith v. RemingtonNew York Supreme Court · 1864
- Kendrick's EstateNew York Surrogate's Court · 1885
- Butler v. JohnsonNew York Supreme Court · 1886
- Clock v. ChadeagneNew York Supreme Court · 1877
- Visscher v. WesleyNew York Surrogate's Court · 1885