87 N.C. 445 | N.C. | 1882
The only question presented by the record for our determination is — was the alleged error in the charge of his Honor, that the account filed by the administrator, Spiers, on the 13th day of May, 1873, was a final account, and if six years had elapsed since the filing *346 of said account and the bringing of this action, the plaintiff's claim was barred by the statute of limitations.
We concur in the ruling of his Honor that the account filed by the administrator, Spiers, on the 13th day of May, 1873, was a final account, though we see no reason why that filed by him on the 10th day of July, 1872, might not be so considered. It showed a clear balance due the heirs on the 1st of July, 1871, after the payment of all debts and expenses of administration. It purported to be a balance due the heirs on the 1st ofJuly, 1871. The amount then shown to be in the hands of the administrator could not be due the heirs, by which was meant the next of kin, but after the payment of all the debts and expenses of administration. It was such a statement as showed to all persons interested in the distribution of the estate, that the administration of the estate was finished; that there was no longer a necessity for holding the surplus; and that it was subject to the call of the next of kin, the payment of which they had the right to enforce by action. The return on the 13th of May was but a repetition of the return of the 10th of July, 1872, varying only to the amount of a few cents, which was evidently the result of a clerical error.
The return then being held to be a final account, the question arises, how does that affect the defence of the statute of limitations?
It is settled as a general principle that the statute of limitations does not run in favor of an administrator against an action by the (448) next of kin for their distributive shares. Bushee v. Surles,
Before the adoption of the Code of Civil Procedure the statute of limitations had no application to such actions as this, nor, since the Code went into operation, to any such action where the right of action accrued prior to its adoption, but if it accrued since that date, then the statute of limitations prescribed by the Code applies. C. C. P. Sec. 16.
The plaintiff complains of no breach of the bond of the administrator prior to October, 1870, and as none is alleged, none is to be presumed; and if there was no breach prior to that date, then no right of action had theretofore accrued, and the statute of limitations prescribed by the Code applies to this action.
That being so, the question arises, does the statute of limitations prescribed by the Code run in favor of an administrator against an action brought by the next of kin for their distributive shares? It was held inIvy v. Rogers,
"This case is purely of equitable jurisdiction, and not subject to any legal bar, by force of the statute of limitations, yet this court, from an early period, has adopted rules as to barring an equity, drawn as nearly as possible from analogy to the rules of law." And in answer to the objection that the defendant who was an administrator, was a trustee, and therefore could not avail himself of such a defence, proceeded to say: "I deem it unnecessary to examine the doctrine (449) relative to express and implied trusts, because the settlement of the account by the administrator presents a clear ground of decision, whatever the defendant's original character may have been. From that time the trust ceased to be open, and the defendant stood in a new relation to the complainant as his debtor. Could the complainant have sued at law, his cause of action would then have begun to run from that time."
The principle to be deduced from this decision is, that if an action should be brought at law upon the bond of an administrator, who had filed his final account in the proper office, the statute of presumptions would begin to run in his favor against the next of kin, and the claim would be presumed to be paid after the lapse of ten years from the time of filing the account.
But the statute of presumptions has been repealed so far as it applied to actions upon the bonds of administrators where the right of action accrued since the adoption of the Code, (Sec. 16) and in lieu thereof statutes of limitation substituted.
We can see no reason why the same principle which sets in motion the statute of presumptions against the next of kin, should not also put in operation the statute of limitations against them.
Our conclusion therefore is, that after the final account, the statute does run against the next of kin, and an action against the administrator upon his official bonds is barred after six years from the auditing of his final account. Sub. div. 2, Sec. 33, C. C. P. And if this statute protects the principal, it must also protect the surety on the bond.
The statute having been once put in motion in favor of the defendant as surety on the administration bond, its course could only be obstructed by a legislative enactment, and there is no legislation by which its running in this case has been checked or suspended. Section 43 of the Code is the only legislation upon the subject. It provides (450) that, "If a person against whom an action may be brought die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced against *348 his executors or administrators after the expiration of that time," etc. But it will be seen that the provisions of the section can have no application to this action, for the defendant here is still living, and they apply only to an action were the defendant dies before the expiration of the limited time.
Entertaining the opinion that the action is barred by the statute, the judgment of the superior court must be affirmed.
No error. Affirmed.
Cited: Andres v. Powell,
