In the Matter of the Estate of Solomon W. Ashheim, Deceased. Aaron Cohn, as Executor, Appellant; Saul W. Wolfenstein et al., Respondents

In the Matter of the Estate of Solomon W. Ashheim, Deceased. Aaron Cohn, as Executor, Appellant; Saul W. Wolfenstein et al., Respondents. Matter of Ashheim, 111 App. Div. 176, affirmed. (Submitted June 6, 1906; decided June 21, 1906.) Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 14, 1906, which affirmed an order of' the New York County Surrogate’s Court directing the appellant herein to file his account as executor of Solomon W. Ashheim, deceased. The following questions were certified: “First. Is an executor who has duly qualified and received assets of his testator’s estate, for which he has never accounted, so far a trustee as to bring him within the rule that the Statute of Limitations does not commence to run in favor of a trustee, against one otherwise entitled to an account, until such trustee has repudiated his trust? “ Second. Where a third party is created by will a trustee, for a term not yet expired, of personal property, of which, as assets of his testator’s estate, the executor of such will has taken possession, but has not delivered the same to the trustee or accounted therefor, is the lapse of over twenty years from the issuance of letters testamentary a bar to a proceeding to compel such executor to account, by one interested in said trust as a' contingent remainderman not yet entitled to receive any benefit therefrom ? ” Sol. A. Cohn for appellant. John De Witt Warner for respondents. [MAJORITY] Order affirmed, with costs, on opinion below. First question certified answered in the affirmative; second, in the negative. Concur: Cullen, Ch. J., Gray, O’Brien, Edward T. Bartlett, Werner, Hiscock and Chase, JJ.