The executor states in his account that he tendered to the husband Campbell $150 in satisfaction of his claim to certain property of his deceased wife, to which he was entitled by statute;. that Campbell refused to take this money, saying that he did not desire any part of his wife’s estate. The testatrix had died in 1895 and her husband Campbell died in March, 1901. About seven months after that the executor delivered over to the daughter, Mrs. Raymer, all the property in his possession, including that to which Campbell would have been entitled. W e. think that, under the circumstances, the refusal of Campbell to receive the money, accompanied with his declaration that he did not desire any of the property, was tantamount to-a waiver of his right and equivalent to saying to the executor that he might turn over all the property to his daughter, the beneficiary. There is no imputation of bad faith on the part *566of the executor, and he apparently relied upon the statement of Campbell, and this evidently was acquiesced in by the present claimant because no suggestion was made of any right to. this property until the judicial settlement in 1903.
It may be, if the Statute of Limitations is not effective, that the petitioner may maintain an action against Mrs. Raymer, who has the possession of all the property, claiming to own it. (Crawford v. Wassoy, 173 N. Y. 163.) In any event the executor ought not to be made to suffer.
The decree of the Surrogate’s Court should be affirmed,
Williams and Hiscock, JJ., concurred.
Decree of Surrogate’s Court affirmed, with costs.