10 S.E. 77 | N.C. | 1889
It was agreed that the judge might try the issue of the statute of limitations, it being the only issue of fact for a jury arising upon the pleadings.
It appears that Dillard Love died in July, 1872, leaving a last will and testament which was proven, and the defendant qualified as executor thereof.
The plaintiffs obtained judgment against the defendant as such executor, upon a debt due from his testator in his lifetime, in the Superior Court of the county of Haywood, for $362.39, on 29 May, 1876.
The present action was begun on 8 June, 1883, by the plaintiffs, in behalf of themselves and all other creditors of the testator named, to compel the defendant as such executor to an account of his administration, and to pay the plaintiffs and all other creditors of his testator what may be payable to them, respectively, as allowed by the statute (Code, sec. 1448).
The defendant in his answer denied most of the material allegations of the complaint, pleaded fully administered, no assets, and particularly, for the present purpose, "that the plaintiffs ought not now to be allowed to prosecute this action, because it was not commenced (601) within seven years after the appointment and qualification of *419 defendant as executor of said Dillard Love, nor was it commenced within seven years after the pretended rendition of the judgment now alleged to be due, and the plaintiff's cause of action is barred by the statute of limitations in such case made and provided."
It is stated in the case settled on appeal that "the only question presented to the court was whether this action is barred by the statute of limitations; and it appearing that this action was brought on 8 June, 1883, upon a judgment taken against the defendant as executor of Dillard Love on 29 May, 1876, in favor of J. R. Love and T. J. Love, executors of J. B. Love, deceased, and that the executors of J. B. Love qualified as such more than seven years before the beginning of this action, and the court, being of the opinion that this action is barred by the statute of limitations, gave judgment for the defendant."
Plaintiffs appealed. The plaintiffs obtained judgment against the defendant, founded upon a cause of action existing against his testator at the time of the latter's death, and the purpose of this action, allowed by the statute (Code, sec. 1448), is to compel the defendant "to an account of his administration and to pay the creditors (including, particularly, themselves as to their judgment) what may be payable to them respectively." The defendant relies for his defense upon the statute of limitation (Code, sec. 153, par. 2), which prescribes that an action must be brought "by any creditor of a deceased person against his personal or real representative within seven (602) years next after the qualification of the executor or administratorand his making the advertisement required by law for creditors of the deceased to present their claims, when no personal service of such notice, in writing, is made upon the creditor," etc., else the same shall be barred.
If it be granted that this statute embraces cases like the present one, the defendant, so far as appears, is not entitled to the benefit of it, because he has failed to allege and prove that he made "the advertisement required by law for creditors of the deceased to present their claims," or that "personal service of such notice (that prescribed by the statute, Code, secs. 1421-1424), in writing," was given to the plaintiffs, as prescribed by law. It will be observed that mere lapse of time does not of itself create the bar. It is this, coupled with notice given by advertisement or personal service, that creates and renders it effectual. The time does not begin to run from that of the notice given, but from the date of the qualification of the executor or administrator. Although the notice is only incidental, it is nevertheless essential, and must be *420
alleged and proven. It is reasonable and just that it should be given, and the statute expressly provides that it shall be. The statute will not help the executor or administrator if he fails to observe its requirements. Coxv. Cox,
The statute under consideration is not unlike, in some respects, the similar one (Rev. Code, ch. 65, sec. 11), and in order to render the former available the party claiming benefit of it must plead it and make appropriate proof in like manner, in pertinent respects, as was necessary in pleading the latter. Rogers v. Grant,
There is therefore error. The plaintiffs are entitled to an order directing and account and to have the action disposed of according to law.
Error.
Cited: Proctor v. Proctor,
(603)
