This case is submitted to the general term without process, pursuant to section 1279 of the Code, and the facts appear in the printed record. By section 2740 of the Code it is provided that, from the death of the decedent until the first judicial settlement of the accounts of the executor, the running of the statute of limitations against a debt due from the decedent to the accounting party is suspended, but that after the first judicial settlement the statute begins again to run against the debt. This section was passed in lieu of section 37 of chapter 460 of the Laws of 1837, as amended by chapter 594 of the Laws of 1868. Bjr section 37 the proof of the claim of an executor or administrator could be made, either on the return before the surrogate of a citation for that purpose, or on the final accounting, and the statute of limitations was not available as a defense, provided the same was presénted at the accounting, and providing the claim was not barred by statute at the time of the death of the testator or intestate. In re Ryder, 129 N. Y. 640, 29 N. E. Rep. 309. The claim of Mr. Po.wers was allowed on the first judicial settlement of his accounts, on April 14th, 1890, and such allowance was affirmed by the court of appeals. In re Powers, 124 N. Y. 361, 26 N. E. Rep. 940. Judge Bradley, in that case, says:
“The contention that it was not within the legislative contemplation that the suspension of the statute of limitations should be continued beyond six years succeeding one year after the granting of letters testamentary or of administration has no support in the plain language of the provision above mentioned. ”
While Judge Bradley limits the application of his decision to the proceedings in the surrogate’s court, yet his associates held that the proceeds of sale of real estate made as late as 1883, and before the claim was proved, should be retained on account of said claim. If the executor could retain such proceeds, it would seem that he had a right to sell other property to realize the balance. Section 2740 reads that the running of the statute of limitations against the debt is suspended from the death to the first judicial settlement, and we think that it means the debt, not only in the proceeding to prove the same before the surrogate, but also in anj7 other proceeding or action wherein the claim is sought to be enforced. We doubt if an executor could institute proceedings *907for the sale of real property for the payment of debts until he had proved bis claim on a judicial settlement of his accounts. This is not the rule in the case of other creditors, as they may proceed without a judicial settlement. The latter-clause of section 2740 is suggestive of the idea that the statute of limitations is suspended as to all proceedings. If the object of the section was to suspend the statute only for the purpose of proving the claim against the personal property, it would be inferred that the executor had realized all that could be collected prior to the judicial settlement, (Code, § 2514, subd. 8; Id. § 2729;) and it was not necessary to add to the section that after the first judicial settlement the statute begins to run against the debt. Judge Bradley said, on the question whether Mr. Powers could apply the proceeds of sales of land to the payment of his débt:
“The power was given to the executor to sell for any purpose which, in his-discretion, should render it desirable so to do. This placed it within hig power to make sale when, in his judgment, it was required to pay debts, taxes, or other expenses within his trusts, and to the extent by him deemed necessary for such purpose, subject, however, to the qualification that some permissible occasion, existed for the exercise of his discretion in that respect. ”
We have already noted that one sale was made in 1883, more than, three years after the granting of letters, and ten years after the death of Mrs. Macomber, and when the debt of Mr. Powers had outlawed but for the provisions of section 2740. The decision of the court of appeals-on the question of the application of the procéeds of sale was made substantially on the same briefs as in this case, and seems to us to be an, adjudication on the questions submitted, and we place our decision solely on the authority of that case. Judgment in favor of the defendant George A. Powers, as executor, that he has power under the will of Sarah Macomber to make the sale and conveyance in the submission referred to, and may make the same, and convey a good title in fee thereby, and that said sale shall be specifically performed, with costs to. defendant George A. Powers, executor, to be paid out of the estate. All concur.