Cook v. Streator, 16 N.C. 324, 1 Dev. Eq. 324 (1829)

June 1829 · Supreme Court of North Carolina

16 N.C. 324, 1 Dev. Eq. 324

Henry Cook v. Mildred Streator et al.

From Wake.

Where letters of administration upon the estate of a deceased debtor never have issued, and after more than seven years from tiie death of the intestate, assets come to his heirs — it was held, upon a bill filed by a creditor setting forth these facts, and praying to have his debt paid out of the assets lately come to the possession of the heirs,, that the act of 1715, (Rev, eh. 10) was a bar to the debt.

The Plaintiff in his bill, whichwas filed in September, 1826, alleged ttiat Juhn Streator was indebted to him, and on the 26th of April, 1806, executed a bond to secure the debt, payable on the 1st June thereafter — that soon after the execution of the bond, Streator died insolvent :«¡d intrátate, that letters of administration upon the es-tale had never issued — bul that at the lime of his death, a suit iu the Court of Equity was pending by which the said Streator sought to redeem a valuable tract of land which he claimed to have been really conveyed in mortgage. although the deed was absolute upon its face — > that the Defendants were the heirs at law of Streator, and had tarried on the suit upon his death, and within a Jew is« abs past, had obtained a decree Sbr redemption, and for the rents and profits, which amount to a large sum. (vide the case reported, 8 Hawks 483). The prayer was, that the Flaintiif might have satisfaction of his debt from the fund thus recovered by the Defendants.

The Defendants in their answers, relied upon the act of 17i3, (fárc. ch. 10.) cntbled 6i aw act concerning proving wills and granting letters of administration, and to prevent frauds its the, management of intestates estates.*'

The case was submitted by Seawall & Badger, for the Plaintiff.

W. IL Haywood, for the Defendants,

argued that if administration had been taken out by the D. fentlants the day before the bill was filed, and the Plaintiff then have sued at law, he would according to the clear construction of the statute, have bren barred. For tins was cited Rid-ley v. Thorpe. (2 Hay. 343,) — Hollowell v. Pope, (2 Mur. 103,) — Hamilton v. Smith, (3 Do. 115,) — Bell v. Beeman, (Do. 273,) — .Jones v. Brodie, {Do. 394,) and McIntyre v. Carson, (2 Hawks 344.)

Hall, Judge.

— In this ca.se the Defendants have pleaded the act of 1715, w hich declares, that creditors of any person deceased shall make their claim within seven years after the death of such debtorotherwise such creditor shall be forever barred. The Plaintiff charges that John Streaior died insolvent, and that letters of administration on his estate have never been granted to any person»

With respect to his insolvency, it appears that a suit was pending against Jones at his death, in which he had * ** r~* an interest. A recovery has been effected by his rcpre-Sentatives since his death, so that it does not appear that he did die insolvent.

With respect to the oilier objection that no person administered upon his estate, it may be observed that no person lias yet administered, and the Plaintiff had as much right to sue within seven years after his death, as he had when he brought this suit. He might have administered upon Streator’s estate himself, and in that character might have filed a petition against the heirs at law under the act of 1789, (Rev. ch. 311,) provided there was no personal estate. As there was no obstacle to bringing suit within seven years more than exists at this time, and no suit was brought before the present one, I think the act before recited is a bar to it.

Per Curiam.

— Let the bill be dismissed with costs.