Gill v. Cooper
Decision Date | 29 November 1892 |
Citation | 16 S.E. 316,111 N.C. 311 |
Court | North Carolina Supreme Court |
Parties | GILL. v. COOPER et al. |
Action on Administrator's Bond—Limitations — When Cause of Action Matures.
1. Under Code, § 155, which provides that an action against the sureties on the bond of an administrator shall be barred unless brought "within three years after the breach thereof complained of, " an administrator de bonis non cannot recover from the sureties of the first administrator where the cause of action arose in 1884, and suit was not commenced till 1889.
2. The cause, of action matures as soon as such administrator de bonis non makes demand upon the representatives of the former administrator, and not at the time a judgment is obtained against them for refusing to obey such demand.
Appeal from superior court, Wedell county; McIver, Judge.
Action by T. M. Gill, administrator de bonis non, against Thomas N. Cooper, G. W. Clegg, R. F. Armfield, and C. H. Armfield. Judgmentfor defendants. Plaintiff appeals. Affirmed.
Bingham & Caldwell, for appellant.
C. H. Armfield and W. D. Turner, for appellees.
This action was referred by consent, and the referee found that the plaintiff's cause of action against the defendants Cooper and Clegg was barred by the statute of limitations. Code, § 155, par. 6. The plaintiff excepted. The matter was heard upon this exception, and it was overruled. There was judgment for said defendants, and plaintiff appealed.
A. F. Gaither was appointed administrator of the estate of John Diffie in June, 1883. The defendants Clegg and Cooper became sureties on his bond. Gaither died in August, 1883, without having rendered any inventory of the estate. The plaintiff was appointed administrator de bonis non of the estate of John Diffie in February, 1884. In April, 1884, he brought an action against the executors of the will of A. F. Gaither for an account and settlement of the estate of Diffie, which had come into the hands of their testator, alleging in his complaint that the defendant executors had "failed, neglected, and refused to make final settlement of the estate of said John Diffie, though often requested so to do." The defendant executors, in their answer filed in that action, denied that they had in their bands any assets belonging to the estate of John Diffie. In September, 1889, the plaintiff obtained a judgment against Gaither, executor, and in October, 1889, he began this action against Cooper and Clegg, the sureties on the bond given by Gaither in 1883. The Code, § 155, par. 6, provides that an action against the sureties on the bond of an administrator shall be barred unless brought " within three years after the breach thereof complained' of." The breach of this bond which is "complained...
To continue reading
Request your trial