The defendant acquired no power to sell the land under the surrogate’s decree; her power to sell is derived solely from the will. Ten years seven months and twenty-three days elapsed between the probation of the will and the date of advertisement under which she attempted to sell. As against the devisees, the statute of limitations had run as. against these claims, notwithstanding the fact that judgment had been recovered upon them against the executrix. (Sharp v. Freeman, 2 Lans., 171; affirmed, 45 N. Y., 802; Raynor v. Gordon, 23 Hun, 264.) The statute (2 R. S., 101, 102, § 10) permits a devisee, as well as an heir, to plead the statute of limitations against claims for the payment of which land is sought to be sold by proceedings under the statutes. Such also is the rule under the Code of Civil Procedure (§ 2755). It is clear *210that in the face of the statute of limitations the land could not, after this lapse of time, have been sold under the statute authorizing the sale of land for the payment of debts.
It was held in Butler v. Bloomfield (MS. op., Gen. Term, Third Dept., May, 1882, Appeal Book, p. 96) that the executrix did not take the .fee under the will, but that the fee passed directly to the residuary devisees, subject to the execution of the power in trust to pay debts and the legacy, if the legacy is a charge, and that there was no equitable conversion of the real estate into personalty. The statute of limitations runs against the execution of a mere power in trust, and may be interposed in favor of an heir or devisee. (Dickinson v. Teasdale, 31 Beav., 511; affirmed, 1 De Gex, J. & S., 52; Coope v. Cresswell, Law Rep., 2 Ch. App. Ca., 112.)
The more serious question is, whether the defendant could, as against the devisees, voluntarily execute the power of sale for the payment of claims which creditors could not enforce by reason of •the lapse of time. The learned justice, who decided this case at .Special Term, held that the plaintiffs were not entitled to a decree restraining the sale, because the statute was designed as a shield and ■could not be invoked in aid of affirmative relief. Without questioning the correctness of the general rule laid down, we think it was misapplied in this case. The plaintiffs were in possession of the land, claiming to own it. The defendant had begun a proceeding which, if concluded, would at least cast a cloud upon plaintiffs’ title. This action is prosecuted strictly in defense of the plaintiffs’ title, seeking no affirmative relief as such against the defendant, .except to prevent her from clouding their title. Suppose a statutory foreclosure of a mortgage be commenced, all rights of action upon which are barred by the statute, would the owner of the fee be ■compelled to lie by and permit his title to be clouded by a sale and .defend an action of ejectment brought by the purchaser % We think not. The statute of limitations may be used defensively by a plaintiff when, as in this case, he is without an adequate legal remedy.
Emma Jane Darrow’s right to recover her legacy accrued June ■28, 1872, one year after issuing letters testamentary (2 R. S., 114, § 9), at which date the statute of limitations began to run upon her right to recover the legacy by an action at law, or by a proceeding in the Surrogate’s Court; and when defendant advertised the land for *211sale, February 21, 1883, the statute had been running ten years, seven months and twenty-three days, and her right to recover the legacy was barred. (McCartee v. Camel, 1 Barb. Ch., 455; Smith v. Remington, 42 Barb., 75; American Bible Society v. Hebard, 51 id., 552; affirmed, 41 N. Y., 619, note; Clark v. Ford, 1 Abb. Ct. App. Dec., 359; S. C., 3 Keyes, 370; S. C., 34 How., 478; Loder v. Hatfield, 71 N. Y., 92.) Section 1819 of the Code of Civil Procedure, providing that the statute shall not begin to run until the executor’s account is judicially settled, did not take effect until September 1, 1880, more than two years after the right to recover the legacy had been barred, and it is not applicable to this case. (Code Civ. Pro., § 3352.)
The question arising over this legacy is not governed by Shannon v. Howell (36 Hun, 47), for the reason that the legatee had the right to compel the payment of the legacy at any time within one year after the letters were issued; while in the case cited, no person had become liable to pay the legacies when the assignee of the legatees sought to sell the land upon which the legacies were expressly charged. In that case the legatees had not concurrent remedies.
Any person interested in an estate as heir, devisee, legatee or creditor may, without the concurrence of the executor, interpose the statute of limitations as a defense to a. claim brought against the estate. (Partridge v. Mitchell, 3 Edw. Ch., 180; Sherwen v. Vanderhorst, 1 Russell & Mylne, 347; Kendrick's Estate, 15 Abb. N. C., 189; S. C., 3 Dem., 301; Warren v. Paff, 4 Bradf., 260; Sharp v. Freeman, supra.)
The judgment should be reversed and a new trial ordered, with costs to abide the event.
Hardin, P. J., and Boardhan, J., concurred.Judgment so far as appealed from reversed, and a new trial ordered, with costs to abide event.