13 S.E. 135 | N.C. | 1891
Lead Opinion
The Code, 154 ('2), bars an action against an executor, administrator or guardian on bis official bond within six years after filing his audited final account, while by The Code, 155 (6), an action against the sureties on such bond is barred within three years after breach complained of.
As the action on the official bond necessarily embraces the sureties, it would seem that the distinction is, that where the final account is filed admitting a balance to be due, but no breach is alleged, such balance as to the sureties is conclusively presumed to be paid over after the lapse of six years if the statute -of limitations is pleaded ; whereas, if a breach is alleged before or after filing final account,'asa devastavit, a failure to file final account, a demand' and refusal to pay balance due by final account, or any other breach of the bond, the sureties are discharged by a delay to sue for more than three years after the breach which is complained of as the cause of action. Norman v. Walker, 101 N. C., 24.
When the executor, administrator or guardian files his final account, and there is a demand and refusal, the action as to him is barred in three years. Wyrick v. Wyrick, 106 N. C., 84.
In the present case the facts as found by the referee and the findings approved by the Court are, that the guardian qualified in 1861, made his returns in 1862, has made none since, and filed no final account. The ward, the plaintiff,
In any aspect of the case, the claim of the plaintiff was barred by the statute of limitations, and the Court below should have dismissed the action.
Dissenting Opinion
dissenting: I am of opinion that the plaintiff’s cause of action is not barred by any statute of limitation. The intestate of the defendant was her guardian, a trustee of an express trust, which has never been closed as required by the statute pertinent {The Code, §§ 1617, 1619), or otherwise, nor did the intestate at any time deny or disavow the trust. In such case, no statute of limitation applies. In Grant v. Hughes, 94 N. C., 231, the Court say: “ The action is not brought upon the' official bond as administrator of the testator of the defendant It is brought to compel an account and settlement of the estate of the intestate of the plaintiff in his hands in his life-time. He was a trustee of an express trust, and the statute of limitations did not apply.”
This case was afterwards cited in Woody v. Brooks. 102 N. C., 334, with approval, and the late Chief Justice Shith said, among other things, “ Until a final account is filed and audited, there can be no bar; nor is there any as to a balance
Furthermore, in my judgment, there was no sufficient evidence — none that should be treated as evidence — of a demand on the part of the plain (iff upon the intestate, her guardian, that he come to an account and settlement with her, and a refusal on his part to do so'. The intestate of the defendant was the plaintiff’s guardian, and her uncle; he had never accounted as such, had neglected to state and file accounts as the statute required. Twice she wrote him, saying, in substance, that she hoped there was something due her as his ward. He simply said, hastily, in reply, that she had already received more than was due her. What she thus said could not fairly, especially in view of the relations of the parties, be treated as a demand for a settlement, nor what the intestate said a refusal to account. The parties had not reached the point of demand on one side and refusal on the other. The plaintiff did not say, or mean to say, “ You owe me, and I demand a settlement,” nor did the guardian say, or intend to say, “ I do not owe you, I will not account with you, seek your legal remedy,” or the substance of that. The language was not fairly that of demand and refusal. In such cases the demand and refusal should be clear and unmistakable. Here the plaintiff was the niece of her guardian. She simply made a timid inquiry and request of the latter. He did not say, “ I am ready to account with you,” as he ought to have done, and was bound to do, no
Per Curiam. Error.
Lead Opinion
The Code, 154 (2), bars an action against an executor, administrator or guardian on his official bond within six years after filing his audited final account, while by The Code, 155 (6), an action against the sureties on such bond is barred within three years after breach complained of.
As the action on the official bond necessarily embraces the sureties, it would seem that the distinction is, that where the final account is filed admitting a balance to be due, but no breach is alleged, such balance as to the sureties is conclusively presumed to be paid over after the lapse of six years if the statute of limitations is pleaded; whereas, if a breach is alleged before or after filing final account, as a devastavit, a failure to file final account, a demand and refusal to pay balance due by final account, or any other breach of the bond, the sureties are discharged by a delay to sue for more than three years after the breach which is complained of as the cause of action. Norman v. Walker,
When the executor, administrator or guardian files his final account, and there is a demand and refusal, the action as to him is barred in three years. Wyrick v. Wyrick,
In the present case the facts as found by the referee and the findings approved by the court are, that the guardian qualified in 1861, made his returns in 1862, has made none since, and filed no final account. The ward, the plaintiff, married in 1872 and became of age in August, 1873, before which time her husband had died. She married (4) again in 1879. In September and October, 1877, the plaintiff wrote her former guardian, saying, in substance, that she hoped something was due her, and asking him to send it. To these letters the guardian replied that he had expended for her more than was due her. This was a demand and refusal, a denial of any liability or trust in respect to the plaintiff. This action was begun 24 September, 1888. This was more than fifteen years after the plaintiff became of age, being then discovert, and more than ten years after the demand and refusal. The statute, having begun to run, could not be stopped by the subsequent marriage of the plaintiff. The Code, sec. 169.
In any aspect of the case, the claim of the plaintiff was barred by the statute of limitations, and the court below should have dismissed the action.