The plaintiff sues to recover fifty dollars in each of these actions; under section 41 (2 R. S. [9th ed.] 1877), which reads: “ The witnesses to any will shall write opposite to their names their respective places of residence. * * * Whoever shall neglect to com*19ply with either of these provisions shall forfeit fifty dollars, to be recovered by any person interested in the property devised or bequeathed, who will sue for the same.” The only question necessary to be considered is whether the Statute of Limitations is a bar to the action.'
The defendants were subscribing witnesses to the will of George Duryea, which was executed on April 22, 1895. Duryea died on December 14, 1897, and the will was admitted to probate oh March 4, 1898. . These actions were commenced on May 20, 1898.
Section 383, subdivision 3, of the Code of Civil Procedure provides that an action for a penalty or forfeiture must be commenced within three years. The plaintiff contends that the statute did not begin to run until the neglect to comply with the statute was discovered. The defendant contends that it began to run from the moment the subscribing witnesses affixed their signatures.
The statute upon which this action is based must be reasonably construed. Its object was to enable parties interested to locate the witnesses. It was not intended to enable an aggrieved party tó recover absolute indemnity; otherwise it would not have named an arbitrary sum, not at all commensurate with the damage which might result from the neglect. It may be a violent presumption that every one is presumed to know the law, yet we must assume that the witnesses to any will know the requirement of the statute and will obey it. The penalty is intended' to compel obedience to a reasonable provision. It is clearly designed as a punishment for failure to comply with the statute, although the right to recover is conferred alone upon persons interested in the property.
It may be assumed that, ordinarily, the person “ interested in the property ” who would be cognizant of the neglect would be the testator. It is not our province to be" influenced by the difficulties of discovering the neglect and thus enforcing the statute, or to enlarge on the "fact that, unless a testator die and his will be offered for probate within, the three years after' its execution, there is no possibility that any person interested other than the testator is likely to acquire knowledge of the neglect.
The Statute of Limitations is a statute of rest, and the only exceptions to its running are in certain cases of disabilities and in the cases mentioned in subdivision 5 of section 382 of the Code of Civil *20Procedure, which provides that in certain cases of fraud ¡the cause "of action is not deemed to have accrued until the discoyefy. of the fraud. There are many other cases where a state of facts [affording a cause of action may not be readily discoverable. For instance, a written contract enforcible under Lawrence v. Fox (20 N. Y. 268) might be executed and not come to the knowledge óf a pefson having a right to enforce its provisions within the period limited by the statute;' nevertheless the statute would run against it. Oij a person might assault a person whose identity was -unknown-to him, "and not discover till the time within which, action could have been brought and expired, and yet the statute would begin to run immediately after the assault. The question might be illustrated by many similar cases, but these are enough. ' . . j
To hold the doctrine for which thei plaintiff contends would destroy the long-accepted doctrine that the -Statute of Limitations, as- already stated, is a statute of rest. No serious public interest is likely to suffer by our decision. No similar action is citejd as ever occúrñng in the courts of this -or any other State. .
Wé -are cléarly of the opinion that the statute begins to fun when the witnesses sign a will, and not when the testator dies of .the will is published or presented for probate. j
The judgment must be reversed, with costs.
All concurred, except. Woodward, J„ who read for affirmance, with whom Bartlett, J., concurred. | ' -