22 N.C. 218 | N.C. | 1839
He surrendered his letters, and John M. Ovice, in 1815, was (219) appointed administrator, etc., on the estate of Dailey. Ovice, as was alleged in the bill, took possession of a large personal estate belonging to Dailey, and upon his death, in 1817, the defendant (Blount) became his administrator. The plaintiff Salter had become administrator de bonis non of Dailey, and in that character, and also as legatee under Dailey's will, filed this bill on 25 August, 1831, to have an account of the estate of Dailey which came to the hands of Ovice. *185
Blount, the administrator of Ovice, in his answer alleged that he had fully administered all the assets of his intestate; relied on the acts of Assembly passed in the years 1715 and 1789, 1 Rev. Stat., ch. 65, secs. 11, 12, barring claims against deceased persons' estates; and he also relied on the great lapse of time which had taken place since he administered on the estate of Ovice to the filing of the bill, as a bar to his being called on to show his administration.
The act of 1815, ch. 10, sec. 9, 1 Rev. Stat., ch. 65, sec. 11, is in these words: That "creditors of any person deceased shall make their claim within seven years after the death of such debtor; otherwise they shall be forever barred." The plaintiff in his character of administrator de bonis non of Dailey cannot be regarded as a creditor of Ovice, because that character was acquired after Ovice's death; and, besides, the act contemplates creditors having claims that might be enforced at the death of the debtor, whom it calls on to present these claims within seven years thereafter, under the penalty of being barred. In the plaintiff's character of legatee under Dailey's will, the act of 1715, 1 Rev. Stat., ch. 65, sec. 11, does not apply. The act declares that the creditors of the deceased should make their claim within seven years. Legatees are not named in the act, and have never been considered as coming within the provisions of it. The defendant is not protected by the act of 1789, 1 Rev. Stat., ch. 65, sec. 12; for there is no allegation nor evidence, in the case, of such advertisement ever having been made as is directed by the act, to bar even a creditor.
The defendant also relies on lapse of time as a reason why the (220) court should not now entertain the bill and drive him to account with the plaintiff. No time short of twenty years has ever restrained the courts of equity from enforcing an account in favor of a legatee against an executor or his representatives. The case is not, we think, within the provisions of the act of Assembly of 1826, 1 Rev. Stat., ch. 65, sec. 14. The act declares that ten years time shall be a presumption of payment or abandonment of the right of redemption on a mortgage and of other equitable interests. It seems to us that the Legislature meant by these words such equitable interests as previous to the passing of this act were barred by time, in analogy to the statute of limitations in England, barring entries into land, such as constructive trusts in land and other equitable interests of that nature. But we are of opinion that the right of a legacy or a distributive share was not intended to be comprehended *186 within the phrase "equitable interest," as used in the act. If the Legislature had intended that ten years should be a bar to the recovery of legacies or distributive shares, we think these would have been expressly mentioned in the act, and not left to be inferred from a general and vague sentence. But fifteen years had elapsed from the death of Samuel to the filing of the bill. As it is possible, however, notwithstanding the fruitless inquiries made after the relations of Dailey, mentioned in his will, that they may yet be found, we deem it proper to direct a publication to be made, inviting them, if in existence, to come forward and assert their claim to the property in dispute.
We are of opinion that the plaintiff is entitled to a decree for an account against the defendant.
PER CURIAM. Decree accordingly.
Cited: McCraw v. Fleming,
(221)