Burgwyn v. . Daniel

20 S.E. 462 | N.C. | 1894

The account is entitled on its face an annual account; it is so styled by the clerk in approving and filing, it, and it is recorded by him in his "Record of Accounts" and not in the book entitled (119) "Final Settlements." The court properly instructed the jury that it was not a final account, and that the six-years statute of limitations did not apply. In Vaughan v. Hines, 87 N.C. 445, the account held to be a final account showed that all the debts and expenses of the estate had been paid, and that there was a net balance which had been found "due the heirs" at a date more than a year previous. The present account merely shows a balance struck and in the hands of the administrator for the exigencies of the estate. The court also correctly told the jury that, there being no final account, the trust was not ended, and the statute did not begin to run till the resignation of the administrator. InGlen v. Kimbrough, 58 N.C. 173, it was held that the lapse of thirty-four years did not bar an action by the administrator de bonis non against the representatives of the first administrator when there was no administratorde bonis non during that period. Whether the ten-years limitation in sec. 158 of The Code now applies in such cases, it is not necessary to decide in this case, as that period has not elapsed. The defendant cannot complain that the judge held that ten years would have been a bar. The sureties would have been protected by the lapse of three years from the taking out of letters of administration de bonis non. Brawley v. Brawley, 109 N.C. 524. It may be noted that that case had been sometimes misunderstood. It does not change the construction placed upon sec. 164 of The Code, that an action must be brought by a representative of a creditor within one year after his death, and against the representative of a debtor in one year after taking out letters of administration, when it would otherwise have become barred. Benson v. Bennett, 112 N.C. 505; Coppersmith v. Wilson,107 N.C. 31.

Brawley v. Brawley held that the statute of limitations did not run to bar an action by an administrator de bonis non against the representative and bondsmen of a deceased administrator while there was (120) no administrator de bonis non — no one in esse who could bring such action. This would not apply to an action brought by the creditor, or a distributee, or legatee, directly against the representative of the deceased executor, administrator or guardian and their sureties for breach of the bond. Of course, after the death of the first administrator, an action to establish a disputed debt could be brought only against the administrator be bonis non.

Affirmed.

Cited: Winslow v. Benton, 130 N.C. 60.