On the 28th of June, 1897, the referee’s report was presented’ to the' Surrogate’s Court of Jefferson county, and the contestants applied for an order confirming the same, and the executor opposed such confirmation, and also moved to set the report aside. On that occasion exceptions to the referee’s decision and findings, and various requests to the surrogate to find were made, which he declined to receive and pass upon, although he subsequently granted an order confirming the referee’s report. The referee found there was a balance in the hands of the appellant of $6,910.52 to be paid by the executor, under the terms of the will, less the costs and expenses of the accounting which he advised should be allowed to both parties out .of the fund. The referee accompanied his report with an opinion.
Before the referee the contestants claimed that the executor should account for the F. Waite & Son note of $8,438.16 in full. The appellant claimed he should not be held for any part of it. The receipt which has been referred to in the statement of facts was produced upon the trial and its execution duly proved by the appellant, and the evidence indicates- that it was signed by Mrs. Waite and witnessed by her son Edward. The referee did not give full force and effect to the receipt. It may be said that the evidence does not very clearly indicate what Mrs. Waite did with the $6,363.63 which was paid to her according to the tenor of the receipt. In order to give validity to the receipt it was not necessary that the evidence should indicate what disposition she made of the money. The referee has charged the appellant with the difference between $6,363.63' and the amount which was due upon the note, and has, therefore, charged the appellant with the sum of $3,226.37. We think the burden was upon the contestants to show that the note had *299not been reduced to the sum mentioned in the receipt, in order to avoid the legal presumption which arises from the production of the receipt. (Boughton v. Flint, 74 N. Y. 476.)
The receipt purports to be in full of all sums of money that were then due upon the note, and in Patterson v. Ackerson (2 Edw. Ch. 427) it was said : “ Where a party claims against the face of such receipt, it is for him to prove his prior demands, and it is not obligatory upon the holder of the receipt to. show previous payment independent of the receipt.” In Danziger v. Hoyt (120 N. Y. 190, 194) it was said : “ It must be assumed that no greater sum than that paid and receipted was conceded to be due.”
We think the evidence does not satisfactorily indicate that the item of $3,226.37 was chargeable to the appellant, and that the finding of the referee in that regard is not satisfactorily supported by the evidence.
Several other items are made the subject of criticism in behalf of the appellant. We are inclined to think that the evidence was sufficient to support the conclusions reached by the referee in respect to them. For the error in allowing the item of $3,226.37, we think the decree should be reversed and the proceedings remitted to the Surrogate’s Court for further determination.
Decree of the Surrogate’s Court reversed, with costs to the appellant payable out of the fund, and the proceedings remitted to the Surrogate’s Court for further determination.
All concurred.
Nash, J.:I concur in the opinion that the referee erred in not giving effect to the receipt of March 28, 1877, given by Irena M. Waite, executrix, to Willis A. Waite, according to its terms, and that, therefore, the decree should be reversed.
But I am of the opinion that at the death of Irena M. Waite, all claims for money had and received by Willis A. Waite on her account more than six years prior to that time had become barred by the Statute of Limitations.
Willis A. Waite was the agent of Irena M. Waite in settling the estate of her husband, Franklin Waite, of whose will she was the executrix. Franklin Waite died March 8, 1875, and by an arrange*300ment made .by Willis with his mother, he undertook the settlement of .the- estate, for her. Willis was in partnership with his father at. the time of his death, under the firm name of F„ Waite & Son, and. it appears that as surviving partner- he settled, the affairs of the firm. On the 27th of March,. 1877, as surviving partner,, he took the receipt of his mother for $6,363.63, in full- of all the F. Waite & Son'.no.tes and. demands'held by her ás executrix. It appears-that, ás agent, Willis collected the- securities belonging to the estate of Franklin Waite and invested, the avails for his mother and-paid moneys to her, and that -he continued to transact his- mother’s business until she died in January, 1893.
. The referee finds that “ Willis received these funds belonging'. to his mother-under an arrangement that he was' to manage them for her ; that he- was to keep them invested for her,, and let her have such sums, from time to time, as she needed or requested.” If he, was to' keep her moneys invested,: and from time to- time let her have such sums as she heeded’, it would not constitute a-trust. Rut there is no evidence in the case from which it can be properly found that Willis was • to receive- the funds belonging to his mother and . manage and keep them invested for her. The only evidence- in the case bearing upon this question is the testimony of John R. Waite. He says that in a conversation with Willis; just before their father’s will was probated-, Willis said he did not want Huntington to' act as executor. “ I said that mother, was not, competent to do this business, hardly, and he said he would do the business; that, of course it would-be a good deal cheaper, as he should hot charge anything.” That is all the evidence there is as fo the arrangement. It. appears, ás -already stated, that 'Willis- went on. and- settled -the estate, and continued to act for' his mother as her agent in the transaction of her', business until she died. - He fully accounted for all- óf his transactions with his mother from January, 1881, to the time of'her. death, having rendered an account conceded to be correct.
There is no evidence in the case upon which an account of matters prior to January, 1881, between Willis and his' mother can be stated, nor is- there any attempt to state such an account. The referee states an account.with annual rests in which he. charges Willis with the avails of the'securities-which he finds were either paid to Willis or which he-ought to have collected, beginning in 1875 aud-bring*301ing it down to the date of Mrs. Waite’s death, computing interest on the amount received and paid each year, the result of which method of stating the account charges Willis with interest on yearly balances, the first period being seventeen years from January, 1876, to January, 1893; the next, sixteen.years from January, 1877, and so on to the time of Mrs. Waite’s death.
Under no conceivable circumstances can the Statute of Limitations be avoided in a suit .by a principal against an agent when the cause of action accrued seventeen, or sixteen, or any number of years more than six prior to the commencement of the action. The cause of action against an agent accrues at the time the money of the principal is received and might to have been paid over or applied to the use of the principal; no demand is necessazy. (Carr v. Thompson, 87 N. Y. 160; Mills v. Mills, 115 id. 80; Middleton v. Twombly, 125 id. 520; Wood v. Young, 141 id. 211; Yates v. Wing, 42 App. Div. 356.)
The finding of the referee is that Willis received these funds belonging to his mother under an arrangement that he was to manage them,for hez, keep.them invested and let her have such suzns 'fz’óm .time to time as she needed or-requested,, and that “her secm•ities which came from her husband’s estate were taken-by Willis and. collections made from time to time of principal and -interest, ;and with the avails investments were made by him from time to time down to Mrs. Waite’,s .death. When she wanted .money she called on Willis, for it, and he paid it-to her.” If-we take this view of the case, we find that all of the earlier securities with which Willis is charged in the account stated by the referee were collected and the avails inyested-.in new securities in the name of Mrs. Waite, or paid over to her or converted by Willis to his own use, prior to January, 1881, tíre beginning of the.accpunt he has rendered — none afterward — for his account back to that time was conceded to be correct. Any claim which Mrs. Waite may have had for moneys collected by Willis and not invested or paid over to her, or for moneys, if any, which he converted to his own use, was, under the above authorities, barred by the statute long prior to her death.
The referee says a trust or agency may be inferred from the acts of the parties. It is unimpoz’tant whether the relations of the parties be termed a trust or an agency, as the trust arising out of an *302agency is not such as to prevent the running of the statute. (Budd v. Walker, 113 N. Y. 637; Mills v. Mills, 115 id. 80, 86.)
The referee seemed to be of the opinion that section 410 of the Code of Civil Procedure prevented the running of the statute. No demand was necessary to entitle Mrs. Waite to'maintain an action. Willis was liable at any time to an action for all moneys in his hands which he failed or neglected to invest, except such moneys as were necessary to supply his mother’s needs, and those she could have demanded at any time. When a demand is necessary, that section provides that the time within which the action must be commenced must be computed from the time when the right to make the' demand is complete; except where the right grows out of the receipt or detention of money or property* by an agent or trustee, the time must be computed from the time when the person having the right to make the demand has actual knowledge of the facts upon which that right depends. It must be held' that Mrs. Waite had or ought to have had knowledge of the moneys in the hands of Willis which remained uninvested during the twelve years from January, 1881, to the time of her death in January, 1893.
In any view that may be taken of the case, I think it is quite clear that any claim against Willis for moneys which came to his hands prior to January, 1881, is barred by the Statute of Limitations.
The decree of the Surrogate’s Court should be reversed, with costs to the appellant payable out of the fund, and the proceedings remitted to the Surrogate’s Court for further determination.
All concurred.
Decree of Surrogate’s Court reversed, with costs to the appellant payable out of the fund, and the proceedings remitted to the Surrogate’s Court for further determination.