The seven shares of stock or the avails thereof remained in the hands of Thomas D. Penfield from December 31, 1878, at which time the decree of the Surrogate’s Court was entered confirming the report of the auditor upbn the executor’s accounting, until the commencement of .this proceeding; and during that entire period of time no .reason existed why a proceeding to determine the ownership. of such stock could not have been instituted; but for.some-' undisclosed reason the petitioner did not see fit to move in the matter until nearly twenty years had elapsed; and it is not unreason-, able -to assume that the present proceeding would never have been heard of had not the stock suddenly become greatly enhanced in value. In these circumstances we fail to see why the ten years’ Statute of Limitations is not a complete defense to the petitioner’s-claim.. (Code Civ. Proc. §§ 388, 414; Matter of Rogers, 153 N. Y.. 316..; Matter of Longbotham, .38 App. Div. 607.)
*345Certainly the present proceeding furnishes a most apt illustration of the necessity and propriety of a statute of repose; for, had it been, instituted within a reasonable time after the right to commence the same accrued, all the parties interested would have been living, and as a consequence the mouth of Thomas D. Penfield would not. have been closed respecting the transactions between him and his co-executor, Abigail Smith, which, could they have been disclosed,, would doubtless have thrown much light upon the question at issue. When, however, the case was brought to a hearing every person primarily interested in the estate of Reuben Smith was dead, except, the executor Penfield, and he died before the proceeding terminated..
It is insisted by way of avoidance of the Statute of Limitations that as one of the results of the decree entered upon the accounting of 1878, Penfield did not thereafter hold the stock as executor, but as trustee of an express trust, in consequence of which the Statute of Limitations did not begin to run until it had been determined, who was the owner of the stock.
It is doubtless true that in the absence of an adverse claim on the part of the trustee, as between him and his cestui que trust, no length of time is a bar, because of the privity existing between the parties (Perry Trusts, §§ 863, 864); but we are unable to see how the present case falls within this rule.
Thomas D. Penfield’s official character was m no wise changed by his partial accounting or by the decree of the Surrogate’s Court, entered thereon. He still remained the executor of Reuben . Smith and continued to hold the, seven shares of stock as such. Indeed, the surrogate’s decree required him as executor to retain the stock “ for the present ” or until the dispute as to the ownership was- settled ; it was only as executor that he could thereafter have been called upon to account for such stock; and it- is only as executor that the present proceeding can be maintained against him or his personal representatives.
Merely calling an executor a trustee does not make him such (Matter of Hamley, 104 N. Y. 250); and in the absence of any evidence tending to establish the creation of an express trust, save the provision in the decree of 1878, requiring Penfield to retain the stock in his hands for the present, which is equivalent to saying-"until the further order of the court,” we do not quite see how the *346respondent’s contention in this regard can be sustained. But even assuming that Penfield’s official character was changed from that of executor to trustee of an express trust by the decree in question, we still think he was entitled to avail himself of the ten years’ statute.
If the seven shares of stock were to be regarded as belonging to the principal of the estate he was clearly the owner of one-half thereof as the assignee of Polly Wetmore, one of the residuary legatees ; and whether principal or income he claimed to own the entire seven shares by reason of an understanding between him and his co-executor, Abigail Smith, in .pursuance of which he" personally furnished the money with which the stock was obtained. So that in either event lie was a claimant to the 'Stock,-whose interest was adverse to that of the petitioner and of his testatrix; and this fact must have been known to both- Mrs. Smith and her administrator, the petitioner herein. Indeed, the latter virtually admits this fact in his petition when he alleges that Penfield refused' to account for or deliver such stock, although frequently and personally requested so to do, both before and after the decease of Abigail Smith. Uposuch refusal Abigail Smith’s right to enforce her claim, either by proceeding in Surrogate’s Court or by a suit in equity, accrued; and as she died in 1875 such right must have expired some ten or twelve years prior to the commencement of this proceeding. (Roberts v. Ely, 113 N. Y. 128; Matter of Neilley, 95 id. 382.)
If we are correct in the views to which we have given expression, it follows that the decree of the Surrogate’s Court must be reversed, without reference to the other questions involved in the appeal, and consequently it becomes unnecessary to consider them.
Decree of Surrogate’s Court reversed, with costs payable out of the estate of Abigail "Smith, deceased, and case remitted to that court for such further proceedings as may be proper.
All concurred except Spring, J., dissenting, and Rumsey,J., not sitting.
Decree of Surrogaté’s Court reversed, with costs. ,