THOMAS C. KELLOGG, as Administrator with the Will Annexed of the Estate of DANIEL KELLOGG, Deceased, Respondent, v. JOHN L. KELLOGG, as Administrator de Bonis Non of the Goods, Chattels and Credits of PAULINA W. KELLOGG, Deceased, Appellant.

(Supreme Court, Appellate Division, Fourth Department, October 13, 1915.) EQUITY-EXECUTORS AND ADMINISTRATORS-SUIT FOR ACCOUNTING DEFENSE -LACHES-WHEN LACHES AVAILABLE AS A DEFENSE, ALTHOUGH NOT SPECIFICALLY PLEADED-STATUTE OF LIMITATIONS-TRUST.

When parties have slept upon their rights for so long a time as to render uncertain the equity of the result sought, and by reason of the death of witnesses and parties it is extremely difficult to determine the actual facts, equity should deny relief.

Hence, where in a suit for an accounting upon the theory that the defendant's intestate died seized of certain property belonging to the estate of plaintiff's testator, which property in whole or in part, or the proceeds of same, are now in the possession of the defendant, it appears that plaintiff's testator died in 1836, leaving a large estate which has never been judicially settled; that involved with this estate is the estate of the brother of the wife of plaintiff's testator, who died in 1824, leaving a will in which he named plaintiff's testator as executor; that the transactions complained of and alleged to have been fraudulent began in the early fifties and were continued for the next thirty years; that with constant means at hand of compelling an adjustment of the estate, and with attention directly and publicly drawn by litigations and public records to improvident management of the estate and to the insolvency of its executors, no effort was made to liquidate the estate until the commencement of this suit in 1912, the complaint should be dismissed upon the ground of laches.

Since laches necessarily appeared from the proof of the plaintiff's acts it is immaterial that it was not specifically pleaded as a defense.

The six years' Statute of Limitations applies where a trust arises by reason of the wrongdoing of the person against whom it is asserted, whether the trust is sought to be enforced at law, in equity, or in the Surrogate's Court.

Neither the plaintiff in this suit nor his predecessors in trust owed an active duty to discover the fraud alleged, but knowledge of the facts from which such an inference might have been drawn was sufficient to start the operation of the statute.

APPEAL by the defendant, John L. Kellogg, as administrator, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 8th day of August, 1914, upon the report of a referee appointed to hear and determine the issues.

John D. Teller, Thomas M. Hunt, Ceylon H. Lewis and Frank E. Stone, for the appellant.

Charles W. Andrews and George Barrow, for the respondent.

LAMBERT, J.-This action is for accounting, upon the theory that Paulina W. Kellogg, the defendant's intestate, died seized of certain properties belonging to the estate of Daniel Kellogg, plaintiff's testator, which properties, in whole or in part, or the proceeds of same, are now in the possession of defendant.

Daniel Kellogg, plaintiff's testator, died May 4, 1836, and was survived by four sons and three daughters, and by his wife, Laura Kellogg.

He left a will, of which he appointed his son, John Kellogg, George F. Leitch and David A. Comstock as executors.

For a time the executor George F. Leitch seems to have been in active charge of the estate. Eventually, however, his health having failed, and Comstock having removed to New York, the active management of the estate devolved upon the son John. Finally both Leitch and Comstock having died, John Kellogg continued to act as sole executor until his death, February 7, 1883.

Following the decease of John Kellogg, one D. Kellogg Leitch was appointed administrator of the estate with the will annexed, and served in that capacity until his death, May 29, 1891.

Daniel Kellogg, a son of the testator, was next appointed administrator of the estate and served until his death, July 21, 1892, at which time plaintiff was appointed as such.

There has never been any judicial settlement of this estate. John Kellogg was survived by his wife, Paulina, who died December 20, 1908, intestate. George B. Longstreet was appointed administrator of her estate, and acted as such until the completion of the trial and submission of this case, when he died, and the defendant was appointed administrator, substituted in the action, and continued the same in his name.

The Daniel Kellogg estate, in gross, amounted to several hundreds of thousands of dollars. Each of the children of the testator participated therein. John, the executor, received a $28,000 bequest, and was also named as one of the residuary legatees.

Twenty-four thousand dollars was given to the executors in trust to pay the income to the daughter, Mary Ann Converse, with the remainder to her children.

Twenty-five thousand dollars in like manner was bequeathed in trust for the benefit of the daughter, Sally Maria Kellogg, with the remainder to her children.

In like manner $25,000 was bequeathed in trust for the daughter, Catherine K. Leitch, with the remainder to her children.

April 26, 1912, the plaintiff filed a claim for $75,000 against the defendant estate, founded upon the facts upon which judgment has been rendered. That claim was rejected May 14, 1912, and this action was brought August 31, 1912.

Pending the determination of the action, plaintiff's application to amend the complaint by increasing the demand for judgment was granted, and judgment for the plaintiff for $236,089.12 has been rendered.

Interwoven with the Daniel Kellogg estate is the estate of one David Hyde, in connection with which latter estate arise many of the matters affording claimed support for the judg ment appealed from.

David Hyde was a brother of the wife of Daniel Kellogg.

He died in 1824, leaving a will, in which he named Daniel Kellogg as executor. That will created a trust in the executor as trustee for the benefit of a daughter, Chloe Hyde, during her minority, the remainder then to be paid to her, or, under certain contingencies, $10,000 of it to be paid to the Theological Seminary at Auburn, N. Y.

Chloe Hyde was taken into the family of Daniel Kellogg during her minority. She was residing there at the time of her majority in August, 1837, and continued her residence at that home until her death, May 31, 1850. She died intestate and without issue, and there has never been any judicial settlement of her estate.

In 1848 it appears that George F. Leitch, one of the executors of Daniel Kellogg's will, was largely indebted to the Kellogg estate, and that Daniel Kellogg's estate was largely indebted to either the estate of David Hyde or to Chloe Hyde, under the trust created by David Hyde's will.

In August, 1848, at the solicitation of John Kellogg, Leitch executed a conveyance to Chloe Hyde of various real property in Auburn and in Syracuse, by deeds which expressed a consideration of $21,000 for the Auburn property and $26,000 for the Syracuse property, aggregating some $47,000. The referee has found that Chloe Hyde was induced to accept that conveyance as a payment upon the bequest owing her by the Daniel Kellogg estate, by reason of the representations of John Kellogg that it was advantageous, inasmuch as the indebtedness was in jeopardy. It is further found that she believed these lands to be clear of incumbrances; that she accepted the conveyance and gave her receipt to John Kellogg as executor for $47,000 on account of the legacy to her under her father's will.

It is further found that these lands unincumbered were scarcely worth $47,000; that in fact they were then incumbered for more than half of their actual value.

Upon the death of Chloe Hyde, and on May 29, 1851, letters

of administration upon her estate were granted to one Almeron H. Cole, who acted in that capacity until October 14, 1859, when he died, and Dan H. Cole was appointed in his stead.

Among the heirs at law of Chloe Hyde was one Christina Beach, who, in 1851, conveyed to Almeron H. Cole all her claimed one-fourth interest in the real and personal estate of Chloe Hyde, including the Syracuse and Auburn lands conveyed by Leitch.

Among the lands conveyed to Chloe Hyde by Leitch in Syracuse was a property known as the Exchange Building. This property was incumbered by a mortgage theretofore given by Leitch, and in August, 1850, that mortgage was placed in foreclosure judgment, the lands were sold and were bid in by Almeron Cole for $10,200, the moneys for which were furnished by the executors of the Daniel Kellogg estate from that estate. It is also found that at that time the executors of Daniel Kellogg held a second mortgage on this property for some $20,000, which mortgage had been sometime theretofore given to Leitch and assigned by him to the executors.

At about the same time a mortgage prior to the Leitch title upon other Syracuse property, known as the Bradley house and lot (also a portion of the lands conveyed by Leitch to Chloe Hyde) was foreclosed, and this title was bid in by Almeron Cole for $1,255.72, which moneys were also furnished by the executors of Daniel Kellogg, and upon this property such executors likewise held a second mortgage.

September 15, 1851, at which time Leitch and Comstock had ceased active management of the Daniel Kellogg estate, John Kellogg, as executor, entered into a written agreement with Almeron Cole, as administrator of the Chloe Hyde estate, to the effect that the Daniel Kellogg estate should bid in and assign to Cole, as such administrator, all the claims against the title conveyed by Leitch to Chloe Hyde which were outstanding at the time of that conveyance, and should satisfy all