§  1844.  But  an  action,  to  enforce  the  liability  declared  in  the  last  section,  can-
not be  maintained  except  in  one  of  the  following  cases:

1.  Where  three  years  have  elapsed  since  the  death  of  the  decedent,  and  no  let-
ters testamentary  or  letters  of  administration  upon  his  estate  have  been  granted
■within  the  State.
3.  Where  three  years  have  elapsed  since  letters  testamentary  or  letters  of  ad-
ministration upon  his  estate  were  granted  within  the  State.
The  statute  provides  that  no  action  shall  be  brought  upon  it
within  three  years  after  the  decease  of  the  testator  ;  such  three  years
do  not  constitute  part  of  the  period  of  limitation,  therefore  a  party
has  nine  years  from  the  maturitj'  of  his  claim  in  which  to  bring  an
action.  Mead  v.  Jenkins,  27  Hun,  570,  citing  Wood  v.  Wood,  26
Barb.  356 ;  Sharpe  v.  Freeman,  45  N.  Y.  802.  In  Wood  v.  Wood,
26  Barb.  356,  it  was  held  that  the  ten  years'  statute  was  applicable.
See  White  v.  Kane,  51  Super.  Ct.  295  ;  Hamilton  v.  Smith,  12  State
Rep.  713.  And  no  suits  can  behrought  against  the  devisees  or  heirs
at  law  within  three  years  of  the  time  of  granting  letters  testamentary
or  of  administration.  Selover  v.  Coe,  63  N.  Y.  438  ;  Roe  v.  Swesey,
10  Barb.  247 ;  Butts  v.  Genung,  5  Paige,  254.     This  objection   is


Action  against  a  Legatee,  Heir  oe  Devisee.  60T

not  waived  by  not  being  pleaded  ;  the  plaintiff  must  show  affirma-
tively that  he  is  within  the  provisions  of  the  statute  ;  the  objection
need  not  be  taken  by  demurrer  or  answer,  Tiie  debts  of  a  decedent
are  not  a  charge  upon  the  heir  until  made  so  by  legal  proceedings.
