10 S.E. 916 | N.C. | 1890
Noah E. Wyrick, executor of George Wyrick, deceased, filed his application to sell real estate to create assets for the payment of debts of his testator. Summons issued and complaint filed 22 September, 1884. The defendant, Barbara Cable, a daughter and devisee of plaintiff's testator, whose lands were charged with the payments of debts, filed an *92 answer denying the necessity of the sale. An account was taken (85) by the clerk, report made and exceptions filed. The exceptions were argued before his Honor, Judge Shipp, at August Term, 1888, at which term Thomas Webb, administrator de bonis non of one Jane Green, was allowed to become a party, and he on 14 November, 1888, filed a complaint alleging that there was due the estate of his intestate, as appeared by the settlement of her estate by George Wyrick, her administrator, for distribution among her next of kin on 11 May, 1875, the sum of one hundred and thirty-three dollars and sixty-eight cents ($133.68), to which complaint the defendant, Barbara, and her husband filed an answer, alleging that the distributees had been paid, and pleading the statute of limitations.
The following facts were admitted or found:
That George Wyrick, testator of petitioner, Noah E. Wyrick, became the administrator of Jane Green, deceased, on the ....... day of February, 1873, and that on 11 May, 1875, his final account as such administrator was filed and audited; that there was on that last named day in his hands for distribution among her next of kin one hundred and thirty-three dollars and sixty-eight cents; that said George Wyrick died on 22 April, 1883, and Noah E. Wyrick qualified as executor 7 May, 1883; that the plaintiff, Webb, became administrator de bonis non of Jane Green on 29 April, 1886.
The defendant, Barbara Cable, contended that as this action was brought for the benefit of the distributees that the action of plaintiff, Webb, was barred by the statute of six years, seven years and ten years, as pleaded in the answer, and argued further to the court, that plaintiff Webb's action not being on an official bond, was barred after the lapse of three years from 11 May, 1875.
His Honor held that the date of plaintiff Webb's action was the date of the issuing of the summons of Noah E. Wyrick, executor, to wit, 22 September, 1884, and instructed the jury to find that the (86) plaintiff Webb's action was not barred by the statute of limitations. To which ruling and instructions the defendant, Barbara, excepted.
There was a verdict for plaintiff, Webb, and judgment, from which the defendant, Barbara, appealed. The only question necessary to be considered in order to dispose of this appeal is whether the claim represented by James. *93 Webb, as administrator de bonis non of Jane Green, is barred by the statute of limitations.
When George Wyrick, the administrator of the said Jane Green, filed hisex parte final account, on 11 May, 1875, it did not have the effect of closing the trust as between him and the distributees, so as to put in operation any statute of limitation for a shorter period than ten years.
Before the adoption of the Code of Civil Procedure there was no statutory limitation or presumption which was put in force by the simple filing of such an ex parte final account, and the courts applied only the common law presumption of payment arising from the lapse of many years of inaction. Davis v. Cotten, 2 Jones' Eq., 435; McCraw v. Fleming, 5 Ired. Eq., 348.
For the reasons given in Woody v. Brooks,
Applying these principles to the case before us, it is clear that up to the time of the commencement of this proceeding, in 1884, the claim of the distributees was not barred. Only eight years ran against the distributees up to the death of the administrator, and this proceeding was commenced by his executor about a year afterwards. So that, from the filing of the final account in 1875 to the beginning of the proceeding, but nine years have elapsed.
Even if the trust had been closed by a decree declaring a balance due the distributees, the claim would not be barred, as it does not appear that there was any demand and refusal.
If, then, the claim was not barred when this proceeding was instituted it is not barred at all, as the very purpose of the proceeding is to subject the lands of the testator to the payment of this and all other indebtedness of the estate. James Webb, the administrator de bonis non, was not a necessary party, since, for the purposes of the proceeding, he and all others having legal demands against the estate were represented *94 by the plaintiff executor. Especially is this true as to this particular claim, as the executor acknowledges it, and asks that it be paid.
His Honor was, therefore, correct in holding that the claim was not barred.
Judgment affirmed.
Cited: Kennedy v. Cromwell,
(88)