On the 12th of January, -1871, letters testamentary were issued to the appellant, Mary-E. Gulick, and she took possession of the property of the estate as executrix of the decedent. By the will the petitioners,, who are the grandchildren of .the testator, are entitled to the residuary estate after the termination of .life estates in certain legatees, of whom Mrs. Gulick, the executrix, is the last survivor. The petition states that Mrs. Gulick.has never filed her accounts as executrix, and such facts are alleged as show it to be proper that an *421accounting should be ordered. Upon the filing of this petition the surrogate, issued a citation returnable on the 9th of January, 1900, directed to Mrs. Gulick, to show cause why her accounts as such executrix should not be filed and judicially settled On the return day of the citation Mrs. Gulick filed her answer. It denied' no part of the petition except the allegation that she had disposed of and appropriated to her own individual use a large amount, if not all, of the personal property which had come into her hands as executrix. It alleged, however, that on the 2.8th of' April, 1878, she had filed her account of her proceedings as executrix, with the vouchers in support of it, but it did not allege that any judicial settlement had ever been had or any decree entered. She pleaded in her answer the Statute of Limitations. Upon the petition and answer the surrogate made an order requiring Mrs. Gulick to render and file her account as executrix and procure it to be judicially settled. From this order this appeal is taken, and the only question is whether the Statute of Limitations has run against the petitioners so as to preclude them from having a judicial settlement of Mrs.. Gulick’s accounts as the executrix of their grandfather. ,
There can be no doubt that Mrs. Gulick, when she assumed thé duties of executrix, became a trustee for the persons who were entitled to share in the estate under the will, and so long as she held the estate in that capacity and did not assume a position adverse to the rights of her cestuis que trustent, the liability to account as trustee existed. The rule is that as long as there is a subsisting and continuing trust, acknowledged or acted upon by the parties, the statute does not apply; but if the trustee denies the right of his cestui que t/rust and the possession of the property becomes adverse, lapse of time from that period becomes a bar in equity. (Kane v. Bloodgood, 7 Johns. Ch. 90.) Until that adverse possession comes to exist and the trust for that reason becomes extinguished, the cestui que trust is entitled to his accounting. (Matter of Petition of Camp, 126 N. Y. 377.)
It is claimed by the appellant here that she has ceased to hold this estate in her capacity of executrix, and that at some time, but just when does not appear,, she took it for life under the will. She bases that claim upon the statement in the petition that the life estate is now enjoyed by her as provided in said will. This state*422mént not having been denied, must be assumed to' be true, but it must be taken in connection with the other allegations of the petition and answer to the effect .that although she has filed an account* she has never had a judicial settlement of that account* and there is no decree of the surrogate fixing the amount of the estate in her hands* or requiring her. as executrix to pay over the money so in her hands to the persons entitled' as legatees to the life estates. Although she has a life éstate, that fact does" not create any presumption that she has transferred the property from herself as executrix to herself as legatee for life, and certainly there is no presumption that such transfer was .known to the residuary legatees or that they ever became aware that she had ceased to hold the estate as executrix, and that being so the rule laid down in the case of Gamp {supra) clearly applies.
In that case a general guardian had received in 1866 money improperly of his wards which he had sold. He was entitled .to hold the money during his life, as tenant by the curtesy. -The infants became of age in 1872, and in 1888 they brought a proceeding to compel him to account as general guardian for the money -which he had received in 1866. The court held that the Statute of Limitations was not a bar to the proceeding because the guardian, having obtained possession of the fund in'that capacity, must be deemed to have dealt with it as such as well as iii that of tenant by the curtesy, and, therefore, he occupied the position of a trustee which prevented the running of the statute, and as long as-the money remained in his hands as guardian and unaccounted for* the right of those interested' in the estate to have an accounting,-continued to exist. That is precisely this case. Mrs. Gu'lick took .the property as executrix, and she has never taken any steps to divest herself as executrix and to hold the property as tenant for life, and so long as she holds in both capacities the petitioners are entitled' to an accounting.
But it is said that the petitioners had a remedy at law,, and that the rule is,:that where a remedy at law exists against which the Statute of Limitations might have run, it will also be deemed to; have run again'qt any other proceeding.' (Kane v. Bloodgood, supra.) But the-respondents had no other remedy. They were not entitled to this property ás lohg as Mrs, Gulick continued to live.'- They were *423entitled, however, to a judicial settlement of her accounts as executrix and to a determination by the surrogate of the amount of the estate she held as such, and that they could obtain in no other way than by the application they have made here. The rule laid down in Kane v. Bloodgood does not apply, therefore, and there is no reason why the petitioners should not be entitled to the accounting which they seek.
The judgment must, therefore, be affirmed, with costs to the respondents.
Pattebsoh and Hatch, JJ., concurred; Yah Beuht, P. J., concurred in result; Ihgeaham, J., dissented.