Coppersmith v. Wilson

• Decision Date: 27 October 1890
• Citation: 12 S.E. 77,107 N.C. 31
• Parties: COPPERSMITH v. WILSON.
• Court: North Carolina Supreme Court

12 S.E. 77

107 N.C. 31

COPPERSMITH v. WILSON.

Supreme Court of North Carolina

October 27, 1890

Appeal from superior court, Pasquotank county; SPIER WHITAKER Judge.

Action by Elisha Coppersmith, administrator de bonis non of William Coppersmith, deceased, for sums claimed to be due plaintiff's intestate by the former administrator, Benoin Cartwright, since deceased. The action was brought on the administrator's bond of Cartwright, and against his personal representatives. Defendant pleaded the statute of limitations. Code N. C.§ 164, provides as follows: "If a person entitled to bring an action die before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced by his representatives after the expiration of that time, and within one year from his death. If a person against whom an action may be brought die before the expiration of the time limited for the commencement thereof and, the cause of action survives, an action may be commenced against his personal representatives after the expiration of that time, and within one year after the issuing of letters testamentary or administration." From a judgment for plaintiff defendant appeals.

Grandy & Aydlett, for defendant.

SHEPHERD J.

The only exceptions presented by the record relate to the claims of John T. Coppersmith, as administrator of Elizabeth Delon and Fannie B. Coppersmith. The claims of the intestates were not barred at the time of their deaths, which occurred respectively in 1872 and 1866. There was no administration upon their estates until within a year of the commencement of this action, in 1886. The defendant puts his case entirely upon the construction of the Code, § 164. He argues that under this section there is a distinction made between cases where the action survives in favor of, and those in which the action survives against, a deceased person, in that in the former, the action must be brought within a year of the death of the intestate, without reference to the time of administration, and that in the latter, it need not be brought until within a year after administration. The distinction contended for is very apparent from the language of the statute, and is doubtless founded upon the reasons given in Hall v. Gibbs, 87 N.C. 4; Baird v Reynolds, 99 N.C. 469, 6 S.E. Rep. 377; Long v Clegg, 94 N.C. 763. These were cases under the statute of presumption. And,...