Lowder v. Hathcock, 150 N.C. 438 (1909)

April 14, 1909 · Supreme Court of North Carolina

150 N.C. 438

D. T. LOWDER, Administrator, v. T. A. HATHCOCK, Jr., ADMINISTRATOR.

(Filed 14 April, 1909.)

1. Guardian and Ward — Express Trust — Termination of Trust— Death of Ward — Administration—Accounting.

The express trust existing between guardian and ward terminates at the death of the latter, and then the ward’s distributees may have letters of administration, taken out and call for an accounting.

2. Guardian and Ward — Death of Ward — Administration—Limitation of Actions.

An action brought by the administrator of a deceased lunatic agaipst the guardian, whose last annual account, made in the ward’s lifetime, showed unaccounted-for guardian funds in his hands, is barred when brought more than ten years after the death of the” ward.

3. Guardian and Ward — Death of Ward — Limitation of Action — Time Extended — Interpretation of Statutes — Requisites—Proof.

The one year given in which to bring an action after the death of the one entitled thereto, provided the statute had not run at the time of the death and the cause of action survives (Revisal, sec. 367), embraces any remaining and unexpired time within the statutory limitation at the time of his death; and when this section is relied, on, in an action by tbe administrator of a deceased lunatic against tbe guardian, to prevent the running of tbe statute of limitations, it is necessary that the action should have been commenced within one year from the issuance of the letters of administration.

ActioN tried before Webb, J., and a jury, at Fall Term, 1908, of Stanly.

Plaintiff appealed.

T. F. Kluttz and J. R. Price for plaintiff.

R. L. Smith, R. E. Austin and Montgomery & Crowell for defendant’.

Clark, C. J.

T. A. Lowder qualified as guardian of Nancy Adderton, a lunatic, in 1854, and filed bis last annual account in November, 1858. Sbe died in 1887 or 18§8, and D. T. Low-der qualified as ber administrator 9 November, 1901. T.’ A. Lowder, tbe guardian, died in 1899, and T. A. Hatheock qualified as bis administrator 13 September, 1899.

Tbe annual account filed in 1858 showed a balance tben in tbe bands of tbe guardian of $1,087.10, and this action is to recover said sum, with compound interest from that date. Tbe guardian survived bis ward eleven or twelve years; and if action had been brought during bis lifetime doubtless be would have shown some disbursements on account. 6f bis ward in tbe thirty years between 1858 and 1887 or 1888, when sbe died, if not of all tbe fund.

Of course, no statute runs against an express trust, but tbe express trust was terminated by ber death (Parker v. Harden, 121 N. C., 58; Faggart v. Bost, 122 N. C., 522; Dunn v. Dunn, 137 N. C., 534; 15 A. and E. Ency., 45), as was also tbe disability of ber lunacy. It was then incumbent upon tbe ward’s distributees to have letters of administration taken out and to call for an accounting.

There is a distinction as to tbe suspension of tbe statute when tbe debtor dies and when tbe creditor. When tbe latter dies, as in this case, Tbe Code, sec. 164 (tben in force, now Revisal, sec. 367), provided: “If a person entitled to bring an action dies before tbe expiration of tbe time limited for tbe commence-merit thereof, and the cause of action survive', an action may be commenced after the expiration of that time and within one year from' his death.” When it is the debtor who dies, the action must be begun “within one year after issuing letters testamentary or of administration.”

It is true this is an enabling and not a disabling statute, and does not cut down the time given by the general statute, but extends it (if not expired) to at least one year after death of a creditor and at least one year after issuing letters to the representative of a debtor. Person v. Montgomery, 120 N. C., 111. But whether the three-year or six-year or ten-year statute bars (all of which are pleaded), is immaterial, as more than thirteen years elapsed after the ward’s death before this action began. When there is at the death remaining unexpired any part of the time limited, but it will expire in less than “one year after the death” of the creditor, or in less' than “one year 'after issuing ■letters” on the debtor’s estate, such “one year” includes, and is not added to, the unexpired statutory time. - «

In this case the guardian had been exposed to an action for over eleven years after the death of the ward, and the time limited for an action against him had expired at his death. Even if it had not quite expired, this action was not begun until more than “a year” (in fact, more than two years) “after issuing letters” to his administrator. Coppersmith v. Wilson, 101 N. C., 31; Winslow v. Benton, 130 N. C., 58.

In every aspect the plea of the statute was a complete bar, and it was properly sustained.

Affirmed.