| N.C. | Dec 13, 1898
IN THE DEFENDANT'S APPEAL. Although the plaintiffs allege in their complaint that the defendant Frost, administrator, made neither the annual return and accounts of his administration under section 1399 of The Code, nor his final account under section 1402 of The Code, yet it is apparent upon the face of the complaint that the real breach of the administration bond complained of was the demand of the plaintiff for an account and settlement made on the administrator Frost for an account and settlement of the estate of his intestate, and for the payment of them as distributees of the amount in his hands to which they were entitled, and his failure and refusal to do so. From that time, then, the three years statute of limitations (The Code, sec. 155, subsec. 6) began to run in favor of the defendant sureties on the administration bond.
The referee to whom was referred the statement of the administration account found as a fact that there was no evidence going to show the date at which the demand and refusal was made, and that as a matter of law (the statute of limitations having been pleaded and the burden of proof having thereby been placed on the plaintiffs to show that the action was begun within three years after such demand and refusal, so far as the sureties were concerned), the action was barred by the statute of limitations as to the sureties. The plaintiffs filed an exception to these findings of the referee, in which exceptions they allege that there was testimony (that of N. A. Stonestreet, one of the plaintiffs) that (293) a demand was made for the settlement in 1894, and that this action was commenced afterwards, on 30 August, 1894. His Honor sustained the exception and reversed the finding made by the referee that the statute of limitation was a bar to the action against the defendant sureties, and had judgment entered against the defendants Frost, administrator, J. R. Williams, Sr., one of the sureties, J. M. Cain, administrator of P. H. Cain, a deceased surety, W. R. Ellis, administrator of D. S. Tucker, another of the deceased sureties, C. L. Cook and Annie Cook, executors of Harrison Cook, another of the deceased sureties, and Mattie K. Clement, executor of W. B. Clement, another of the deceased sureties. From the judgment the defendant Williams and the other defendants who are the personal representatives of the deceased sureties appealed.
The alleged error in the judgment is that his Honor held that the cause of action against the appellant defendants was not barred by the statute of limitations. *221
The case shows that the evidence was before his Honor, and we must conclude by his having sustained the plaintiff's exceptions that he found, upon inspection of the evidence, that the plaintiff N. A. Stonestreet had testified that in 1894 he had made demand upon the administrator for a settlement of his administration, and that the administrator refused to make the settlement, and that upon that testimony his Honor found as a fact that demand for the settlement was made in 1894. We cannot review that finding, and consequently there was no error in his holding that the action was not barred by the statute of limitations as to the defendant Williams and the other defendants, the personal representatives of deceased sureties.
The defendant J. M. Cain, administrator of P. H. Cain, a (294) deceased surety, excepted to the judgment on the further ground that his Honor held that he was liable as administrator notwithstanding the admitted fact that he had made a final settlement of his intestate's estate, and after having given the notice required by law to creditors. There was no error in his Honor's ruling on that point and the exception to the judgment cannot be sustained. The liability of the intestate surety, as we have seen, is not barred by the statute of limitations. Notwithstanding that, the defendant J. M. Cain, administrator of P. H. Cain, has given notice to creditors according to law, and has made a final settlement of his intestate's estate, he is still administrator (though not personally liable for any part of the recovery in this action), and the plaintiffs have resorted to a proper remedy to ascertain the amount of their debt against the estate of one of the deceased sureties on the bond.
No error.
Cited: Self v. Shugart,