Jackson v. Thomas, 211 N.C. 634 (1937)

May 19, 1937 · Supreme Court of North Carolina

211 N.C. 634

J. W. JACKSON, Administrator, v. D. J. THOMAS, Administrator.

(Filed 19 May, 1937.)

1. Executors and Administrators § 17: Limitation of Actions § 10—

An action against an administrator on a subrogated claim for funeral expenses and to recover a legacy is not completely barred by any statute of limitations, even when claim is not filed within twelve months from notice, when plaintiff shows undistributed assets of the estate. O. S., 101.

2. Trial § 24—

A demurrer to the evidence goes to. plaintiff’s entire right to recover, and may not be sustained if, in any aspect or to any extent, a cause of action within the pleadings is made out. C. S., 567.

Appeal by plaintiff from Rousseau, J., at September Term, 1936, of Moobe.

Civil action to recover legacy and funeral expenses advanced by plaintiff’s intestate at request of defendant administrator.

Plaintiff proffered evidence tending to show that his intestate paid the funeral expenses of defendant’s intestate, at the request of the defendant administrator on the latter’s promise to repay the same, which has not been done and that the undistributed assets of the estate are sufficient to care for plaintiff’s claims.

There was no plea of plene administravit, but defendant “pleads the one-year statute and the three-year statute and every other statute of limitations known to the law in bar of said claim.”

From judgment of nonsuit entered at the close of plaintiff’s evidence, he appeals, assigning errors.

K. R. Hoyle and 8. R. Hoyle for plaintiff, appellant.

W. R. Clegg for defendant, appellee.

Stacy, C. J.

Plaintiff’s evidence tends to show a subrogated claim for funeral expenses, Ray v. Honeycutt, 119 N. C., 510, 26 S. E., 127, 60 C. J., 725, a legacy due plaintiff’s intestate, Redmond v. Burroughs, 63 N. C., 242, and undistributed assets of the estate. In re Estate of Bost, ante, 440; Caffey v. Osborne, 210 N. C., 252, 186 S. E., 364. This would seem to defeat the motion for nonsuit, as none of the statutes of limitations is a complete bar upon the facts presently appearing of record. Moreover, the plea of the statutes of limitations would seem to be bad, Turner v. Shuffler, 108 N. C., 642, 13 S. E., 243, except, perhaps, as it may relate to C. S., 101, which is not available as against undistributed assets other than costs. In re Estate of Bost, supra.

A demurrer to the evidence goes to plaintiff’s entire right to recover, and may not be sustained, if, in any aspect or to any extent a cause of action within the pleadings is made out. C. S., 567; Moseley v. R. R., 197 N. C., 628, 150 S. E., 184.

Reversed.