Thompson v. . Nations , 112 N.C. 508 ( 1893 )

The complaint alleged that on 10 December, 1862, the defendant Nations, qualified as administrator of Jesse Thompson, deceased, the other defendants being sureties on his administration bond, and that on 13 April, 1891, the administrator filed his account before the clerk of the Superior Court, showing a balance of $466.65 due the plaintiffs as heirs and next of kin of the intestate, a small part only of which had been paid, and judgment was asked against the sureties for the penalty of the bond to be discharged upon payment of the amount due, etc.

The defendant sureties in their answer contended that the action, as to them, was barred by the statute of presumptions and limitations; that more than ten years, and also more than three years, had elapsed since plaintiff's cause of action accrued; that more than seven years had elapsed since the administrator qualified and made advertisement for creditors to present their claims, etc.

The plaintiffs introduced the records of the clerk's office of Surry County showing an account filed by the defendant administrator on 13 April, 1891, and closed their case, asking for judgment against all of the defendants.

Judgment being rendered for the plaintiffs, the defendant sureties appealed. The administration having been taken out 10 December, 1862, a cause of action accrued to plaintiffs two years thereafter. Rev. Code, ch. 46, sec. 24. The Code, sec. 137, does not postpone the time when causes of action shall accrue, but merely extends the period of limitations or presumption after a cause of action has accrued, by omitting from the count the time between 20 May, 1861, and (510) 1 January, 1870. This cause of action having accrued in 1864, the presumption from the lapse of time applies and not the statute of limitations. The Code, sec. 136; Bushee v. Surles, 77 N.C. 62. "The lapse of time (under the law prior to C.C.P.) constitutes no bar to the demand of an account by the next of kin against the administrator, but it may raise a presumption (of settlement or abandonment) . . . when there has been an interval of twenty years after the time appointed for settlement with the next of kin." Bird v. Graham, 36 N.C. 196; Salter v. Blount,22 N.C. 218.

The account filed by the administrator, 13 April, 1891, was after the presumption from the lapse of twenty years from 1 January, 1870, had arisen and could not rebut it as to these appellants who are the sureties on the administration bond. There being no conflicting evidence, it was the duty of the court to declare that the presumption was not rebutted. Grant v.Burgwyn, 84 N.C. 560.

AFFIRMED.

Cited: S. c., 113 N.C. 348; Outland v. Outland, 118 N.C. 141;Edwards v. Lemmonds, 136 N.C. 331.