Andres v. Powell , 97 N.C. 155 ( 1887 )

Davis, J.,

(after stating the facts). Section 153, sub-sec. 2r of The Code, prescribes that an action must be commenced within seven years, “ by any creditor of a deceased person against his personal or real representative,” &c. Section 154, sub-sec. 2, prescribes that an action must be commenced against an executor, administrator, &c., within six years after the auditing of his final accounts. Section 155, sub-sec. 6, prescribes that an action must be brought against the sureties of any executor, &c., within three years after the breach complained of.

Section 1528 enacts, that “ all persons succeeding to the real or personal property of a decedent, by inheritance, devise, bequest, or distribution, shall be liable jointly and not separately, for the debts of such decedent.” And §1529 provides, that no person shall be liable under the preceding section, beyond the value of the property so acquired by him, or for any part of a debt that might by action or other due proceeding have been collected from the executor, administrator, or collector of the decedent, and it is incumbent on the creditor to show the matters herein required, to render such person liable.”

All these acts are intended to limit the liability of executors, administrators, next of kin and heirs of decedents, and after reasonable time, to give quiet and repose to the estates of dead men.

In Briggs v. Smith, 83 N. C., 306, it is held, that the action must be brought within six years after the auditing of the final accounts, if there is no such disability.

In Vaughan v. Hines, 87 N. C., 445, Ashe, J., says: “ Our conclusion is, that after the final account, the statute does ran against the next of kin, and an action against the administrator upon his official bond is barred after six years from the auditing of his final account. And if the statute protects the principal, it must also protect the surety on the-bond.”

If the executor or administrator fail to pay over to the-next of kin within six years after the final account is audited, they are barred. To avoid the statutory bar, they must bring action within that period. It would be a curious legal anomaly, if, within six years, the next of kin should bring their action against the executor or administrator, (and they must bring it within six years or be barred,) and recover, and then more than six years after the auditing of the account, a creditor of the deceased should bring action, and be allowed to recover, either out of the executor or administrator, or out of the next of kin or heir. The statute might well be regarded as dead and worthless, if such could be the result, and the estate of dead men could never find repose.

The case of Davis v. Perry, 96 N. C., 260, and cited by counsel for the plaintiff, has no application. In that case, the plea of the statute was not relied on in the answer, and the defence must be taken by answer. The Code, §138.

A. J. Shipman died in 1869, and administration was taken out on his estate on the 17th of May, 1869, by J. W. Ellis. Ellis died in 1883, nearly fourteen years after, and it not only does not appear that the money could not have been collected out of him, but the devastavit complained of, was committed more than six years before his death. A. F. Powell died in 1873, and the final account of his executors was audited in October, 1875, and his estate distributed ten years before the bringing of this action, and eight years before the death of J. W. Ellis, the administrator of Ship-man.

This action ivas commenced in 1885, about twelve years after the qualification of the executor of A. F. Powell, and we think that it is barred, both by the six years’ and the seven years’ statutes. If those statutes have any life and force, they must apply to such a case as this. The case of Syme v. Badger, 96 N. C., 197, and the authorities there cited, are conclusive upon the point as to the seven years’ bar, and we need not consider it further, except to add to the authorities the case of Peck v. Wharton, Martin v. Yerger, (Tenn. Rep.,) 360.

That was a suit instituted to subject the land descended to the heirs of Daniel Wharton to the payment of his debts, under circumstances very similar to those in the present ■case, and the same defences were relied on as here, with the ■exception that the seven years’ bar was that of the act of 1715, which was embodied in the laws of Tennessee. In that case, the Court say: “Situated as these parties are, who ■ought to lose, for it appears that a loss must be sustained? * * * -v jn cas6) then, of a waste of the personal estate, who shall bear the loss? Is it more reasonable that it should fall upon the heir, who has no more power than the creditor, (indeed not so much,) to coerce .the administrator to pursue the right course ? The creditor can sue the administrator for his demands — the heir cannot compel the administrator to pay the debts of the estate; he may have a wish that it may be done, but what facilities has the law given him? Then to tie up the hand of the heir, first, as to the appointment of the administrator; secondly, as to the management ■of the personal estate; thirdly, as to the bringing and prosecuting of suits for debts due by the ancestor, and yet say, that finally his estate shall be swept away, because an accident has happened in managing the personal estate, would be casting upon the heir a most unnatural and intolerable burthen. Upon the right of the heir to plead the statute of limitation, we are of opinion that he may insist upon it, and that lie is not limited on the scire facias to contest only the finding of the plea of fully administered. * * * * We are, moreover, of the opinion that the act of 1715, of seven years, will operate as a bar, and that that act is in force, we consider one of the best established positions litigated in our Courts. It is so held in North Carolina, and a concurrence of opinion in the Judges of that State, even if vTe had doubts, would incline us to pause before we expressed them.”

There is error, and the judgment must be reversed. Let this be certified.