Lowder v. Hathcock

• Decision Date: 14 April 1909
• Parties: LOWDER v. HATHCOCK.
• Court: North Carolina Supreme Court

64 S.E. 194

150 N.C. 438

LOWDER v. HATHCOCK.

Supreme Court of North Carolina

April 14, 1909

Appeal from Superior Court, Stanly County; Webb, Judge.

Action by D. T. Lowder, administrator of Nancy Adderton, against T A. Hathcock, Jr., administrator of T. A. Lowder. Judgment for defendant, and plaintiff appeals. Affirmed.

The trust imposed in the guardian of a lunatic terminates upon the lunatic's death, and limitations then begin to run against the right of the lunatic's distributees to call for an accounting.

T. F Kluttz and J. R. Price, for appellant.

R. L Smith, R. E. Austin, and Montgomery & Crowell, for appellee.

CLARK C.J.

T. A Lowder qualified as guardian of Nancy Adderton, a lunatic, in 1854, and filed his last annual account in November, 1858. She died in 1887 or 1888, and D. T. Lowder qualified as her administrator November 9, 1901. T. A. Lowder, the guardian, died in 1899, and T. A. Hathcock qualified as his administrator September 13, 1899. The annual account filed in 1858 showed a balance then in hands of the guardian of $1,087.10, and this action is to recover said sum, with compound interest from that date. The guardian survived his ward 11 or 12 years, and, if action had been brought during his lifetime, doubtless he would have shown some disbursements on account of his ward in the 30 years between 1858 and 1887 or 1888, when she died, if not of all the fund. Of course, no statute runs against an express trust, but the express trust was terminated by her death (Parker v. Harden, 121 N.C. 58, 28 S.E. 20; Faggart v. Bost, 122 N.C. 522, 29 S.E. 833; Dunn v. Dunn, 137 N.C. 534, 50 S.E. 212; 15 Am. & Eng. Encyc. 45), as was also the disability of her lunacy. It was then incumbent upon the ward's distributees to have letters of administration taken out, and to call for an accounting.

There is a distinction as to the suspension of the statute when the debtor dies and when the creditor. When the latter dies, as in this case, Code, § 164 (then in force) now Revisal 1905, § 367, provided: "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 survive an action may be commenced after the expiration of that time and within one year from his death." When it is the debtor who dies, the action must be begun "within one year after issuing letters testamentary or of administration." It is true this is an enabling and not a disabling statute, and does...