Salter v. Blount, 22 N.C. 218, 2 Dev. & Bat. Eq. 218 (1839)

June 1839 · Supreme Court of North Carolina

22 N.C. 218, 2 Dev. & Bat. Eq. 218

JOHN SALTER vs. THOMAS H. BLOUNT, Adm’r. of JOHN M. OVICE et al.

Where an administrator takes possession of the effebts of his intestate, , and dies, and administration is granted’upon his estate, and more than seven years afterwards administration de bonis non is taken upon the first intestate’s estate, the act of 1715, 1 Rev. Stat. ch. 65, sec. 11 ■will not bar a suit, at the instance of the administrator de bonis non against the representative of the first administrator, for an account of the estate of the first intestate which came to the hands of his first representative.

The act of 1715, 1 Rev. Sfat. ch. 65, sec. 11, barring creditors, after seven years, does not extend to legatees.

The act of 1789,1 Rev. Stat. ch. 65, see. 12, will not protect the executor or administrator, even against a creditor, unless such advertisement be shewn to have been made as the act requires.

No time short of twenty years, has ever restrained Courts of Equity from enforcing an account in favor of a legatee against an executor or his representatives.

The right to a legacy or a distributive share, is not within the act of 1826,1 Rev. Stat. ch. 65, sec. 14, declaring that ten years time shall be a presumption of payment or abandonment of q right of redemption on a mortgage, and of other equitable interests.

William Dailey made his will, and died in the year 1812. Alter a legacy to the wife, the will has this clause: “I lend to my son Samuel Dailey all the residue of my property, whether real or personal, till the age of twenty one; if he should die before that time and I have no other child, I then give half my personal property to my wife Elizabeth Dailey; and the rest of my property, whether real pr personal, to my relations on the part of my mother, in England, if any living. Their names were Thompsons, and James was the only living, and he single 20 years ago; a daughter was living, who married one Anderson, if they are to be found.— If not, I give my property to John Salter, my wife’s brother. But should my son live to the age of twenty-one years, then I give him every part of my property.” Samuel Dailey, the son of the testator, died in the year 1816, under age. The executor of Dailey qualified to the will, and then died. Then Mau rice Jones qualified as administrator, de bonis non, with the will annexed. He surrendered his letters, and John M. Qvice, in the year 1815, was appointed administrator &c, on the estate of Dailey. Ovice, as was alleged in the bill, took possession of a large personal estate belonging to Dailey, and upon his death, in the year 1817, the defendant (Blount) became his administrator. The plaintiff, Salter, had become administrator de bonis non of Dailey; and, in that character, and also as a legatee under Dailey’s will, filed this bill on the 25th of August, 1831, to have an account of the estate of Dailey, which came to the hands of Ovice.

Blount, the administrator of Ovice, in his answer, alleged that he had fully administered all the assets of his intestate; relied on the acts of Assembly, passed in the years 1715, and 1789,1 Rev. Stat. ch. 65, sec. 11, 12, barring claims against deceased persons’ estates. And he also relied on the great lapse of time which had taken place since he administered on the estate of Ovice, to the filing of the bill, as a bar to his being called on to shew his administration.

The act of 1715, ch. 10, sec. 9,1 Rev. Stat. ch. 65, sec. 11, is in these words. Thatcreditors of any person deceased, shall make their claim within seven years after the death of such debtor; otherwise they shall be forever barred.”-

Badger for the plaintiff.

Iredell for the defendant.

Daniel, Judge,

having stated the case as above, proceeded as follow: The plaintiff in his character of administrator de bonis non of Dailey, cfinnot be regarded as a creditor of Ovice, because that character was acquired after Ovice’s death; and besides, the act contemplates creditors having claims, that might be enforced at the death of the debtor whom it calls on to present these claims, within seven years thereafter, under the penalty of being barred. In the plaintiff’s character of legatee, under Dailey’s 'will, the' act of 1715, 1 Rev. Stat. ch. 65, sec. 11, does not apply. The act declares, that the creditors of the deceased should make their claim within seven years. Legatees are not named in the act, and have never been considered as coming within the provisions of it. The defendant is not protected by the act of 1789, 1 Rev. Stat. ch. 65, sec. 12: for there is no allegation nor evidence, in the case, of such advertisement ever having been made, as is directed by the act, to bar even a creditor.

The defendant also relies on lapse of time as a reason why the court should not now entertain the bill, and drive him to account with the plaintiff. No time short of twenty years, has ever restrained the Courts of Equity, from enforcing an account in favor of a legatee against an executor or his representatives. The case, is not, we think, within the provisions of the Act of Assembly of 1826, 1 Hev. Stat. ch. 65, sec. 14. That act declares, that ten years’ time shall be a presumption of payment or abandonment of the right of redemption on a mortgage, and of other equitable interests. It seems to us, that the Legislature meant, by these words, such equitable interests as, previous to the passing of this act, were barred by time, in analogy to the statute of limitations in England, barring entries into land; such as constructive trusts in land, and other equitable interests of that nature. But we are of the opinion, that the right to a legacy or a distributive share was not intended to be comprehended within the phrase, equitable interest, as used in the act. If the Legislature had intended that ten years should be a bar to the recove-ery of legacies, or distributive shares, we think these would have been expressly mentioned in the act, and not left to be inferred from a general and vague sentence. But fifteen years had elapsed, from the death of Samuel to the filing of the bill. As it is possible, however, notwithstanding the fruitless en-quiries made after the relations of Dailey, mentioned in his will, that they may yet be found, we deem it proper to direct a publication to be made, inviting them, if in existence, to come forward and assert their claim to the property in dispute.

We are of opinion, that the plaintiff is entitled to a decree for an account against the defendant.

Pee. Curiam. Decree accordingly.