Kennedy v. Cromwell
| Decision Date | 21 April 1891 |
| Citation | 13 S.E. 135,108 N.C. 1 |
| Parties | Kennedy v. Cromwell. |
| Court | North Carolina Supreme Court |
Syllabus by the Court.
1. Where the cause of action against an executor, administrator or guardian is for a breach of the bond it is barred, as to the sureties, after three years from the breach complained of. Code, § 155, (6.)
2. Where the cause of action is to recover the balance admitted to be due by the final account it is barred, as to sureties on the bond, after six years from auditing and filing such final account. Code, § 154, (2.)
3. When such final account is filed, and there is a demand and refusal, the action is barred, as to both the principal and sureties on said bond, in three years.
4. When such final account is filed, and there is no demand and refusal,quoere, whether the action as to the executor administrator, or guardian himself is barred in six years or ten years.
5. When there is no final account filed, semble, that the statute begins to run from the arrival of the ward of age, but whether, in such case, three years or ten years bars, quoere.
6. When no final account has been filed, but there is a demand and refusal, the statute bars in three years thereafter, as to the principal as well as the sureties.
7. When the statute begins to run, the subsequent marriage of the feme plaintiff will not stop it.
Appeal from superior court, Edgecombe county; Spier Whitaker, Judge.
G. M T. Fountain and H. L. Staton, for appellant.
John L. Bridgers, for appellee.
The Code, § 154, (2,) bars an action against an executor administrator or guardian on his official bond within six years after filing his audited final account; while by the Code, § 155, (6,) an action against the sureties on such bond is barred within three years after breach complained of. As the action on the official bond necessarily embraces the sureties, it would seem that the distinction is that, where the final account is filed admitting a balance to be due, but no breach is alleged, such balance, as to the sureties, is conclusively presumed to be paid over after the lapse of six years if the statute of limitations is pleaded; whereas, if a breach is alleged before or after filing final account, as a devastavit, a failure to file final account, a demand and refusal to pay balance due by final account, or any other breach of the bond, the sureties are discharged by a delay to sue for more than three years after the breach which is complained of as the cause of action. Norman v. Walker, 101 N.C. 24, 7 S.E. Rep. 468. When the executor, administrator, or guardian files his final account, and there is a demand and refusal, the action as to him is barred in three years. Wyrick v. Wyrick, 106 N.C. 184, 10 S.E. Rep. 916. When he files such final account, and there is no demand and refusal, whether the action is barred as to him in six years under the Code, § 154, (2,) (Vaughan v. Hines, 87 N. C 445,) or in ten years by virtue of the Code, § 158, (Wyrick v. Wyrick, supra,) we are not called on to decide in the present case. Here, though one annual account was filed, no other was subsequently filed, nor any final account. Under such circumstances, whether or not there is an unclosed express trust against which no statute runs was left an open question by Pearson, J., in Hamlin v. Mebane, 1 Jones, Eq. 18; but Smith, C.J., intimates strongly, in Hodges v. Council, 86 N.C. 186, that even in such case the cause of action accrued upon the ward becoming of age, and that it would be at least barred by the lapse of ten years, (Code, § 168,) and possibly in three years; citing Ang. Lim. §§ 174, 178. In Wyrick v. Wyrick, supra, the court, (Shepherd, J.,) say that "it was the evident purpose of the Code to prescribe a period of limitations to all actions whatsoever, and thus make it a complete statute of repose." Whether the limitation is three years or ten years it runs from the ward's majority, when no final account has been filed, and there has been no demand and refusal. In the present case there was a demand and refusal. This put an end to the trust of itself, if it was not before terminated by the ward's becoming of age, and capable of suing. The relation of the parties became adversary by the demand and refusal, and it is clear that the action would be barred by a delay to sue within three years thereafter. Robertson v. Dunn, 87 N.C. 191; Woody v. Brooks, 102 N.C. 334 9 S.E. Rep. 294; County Board of Education v. State Board of Education, 107 N.C. 366, 12 S.E. Rep. 452. In the present case, the facts, as found by the referee and the findings approved by the court, are that the guardian qualified in 1861, made his returns in 1862, has made none since, and filed no final account. The ward, the plaintiff, married in 1872, and became of age August, 1873, before which time her husband had died. She married again in 1879. In September and October, 1877, the plaintiff wrote her former guardian, saying, in substance, that she hoped something was due her, and asking him to send it. To these letters the guardian replied that he had expended for her more than was due her. This was a demand and...
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