Kennedy v. . Cromwell , 108 N.C. 1 ( 1891 )

The Code, 154 (2), bars an action against an executor, administrator or guardian on his official bond within six years after filing his audited final account, while by The Code, 155 (6), an action against the sureties on such bond is barred within three years after breach complained of.

As the action on the official bond necessarily embraces the sureties, it would seem that the distinction is, that where the final account is filed admitting a balance to be due, but no breach is alleged, such balance as to the sureties is conclusively presumed to be paid over after the lapse of six years if the statute of limitations is pleaded; whereas, if a breach is alleged before or after filing final account, as a devastavit, a failure to file final account, a demand and refusal to pay balance due by final account, or any other breach of the bond, the sureties are discharged by a delay to sue for more than three years after the breach which is complained of as the cause of action. Norman v. Walker, 101 N.C. 24.

When the executor, administrator or guardian files his final account, and there is a demand and refusal, the action as to him is barred in three years. Wyrick v. Wyrick, 106 N.C. 84. When he files such (3) final account, and there is no demand and refusal, whether the action is barred as to him in six years under The Code, 154 (2)Vaughan v. Hines, 87 N.C. 445), or in ten years by virtue of The Code, 158 (Wyrick v. Wyrick, supra), we are not called on to decide in the present case. Here, though one annual account was filed, no other was subsequently filed, nor any final account. Under such circumstances, whether or not there is an unclosed express trust against which no statute runs, was left an open question by Pearson, J., in Hamlin v. Mebane,54 N.C. 18, but Smith, C. J., intimates strongly in Hodges v.Council, 86 N.C. 186, that even in such case the cause of action accrued upon the ward becoming of age, and that it would be at least barred by the lapse of ten years (The Code, sec. 158), and possibly in three years, citing Angell on Lim., secs. 174, 178. In Wyrick v. Wyrick,supra, the Court (Shepherd, J.) say that "it was the evident purpose of The Code to prescribe a period of limitations to all actions whatever, and thus make it a complete statute of repose," whether the limitation is three years or ten years from the ward's majority, when no final account has been filed and there has been no demand and refusal. In the present case there was a demand and refusal. This put an end to the trust itself, if it was not before terminated by the ward's becoming of age and capable of suing. By the demand and refusal the relation of the parties became adversary, and it is clear that the action would be barred by a delay to sue within three years thereafter. Robertson v. Dunn,87 N.C. 191; Patterson v. Lilly, 90 N.C. 82; Woody v. Brooks,102 N.C. 334; Board of Education v. Board of Education, 107 N.C. 366.

In the present case the facts as found by the referee and the findings approved by the court are, that the guardian qualified in 1861, made his returns in 1862, has made none since, and filed no final account. The ward, the plaintiff, married in 1872 and became of age in August, 1873, before which time her husband had died. She married (4) again in 1879. In September and October, 1877, the plaintiff wrote her former guardian, saying, in substance, that she hoped something was due her, and asking him to send it. To these letters the guardian replied that he had expended for her more than was due her. This was a demand and refusal, a denial of any liability or trust in respect to the plaintiff. This action was begun 24 September, 1888. This was more than fifteen years after the plaintiff became of age, being then discovert, and more than ten years after the demand and refusal. The statute, having begun to run, could not be stopped by the subsequent marriage of the plaintiff. The Code, sec. 169.

In any aspect of the case, the claim of the plaintiff was barred by the statute of limitations, and the court below should have dismissed the action.