Moore v. Bryson
| Decision Date | 28 April 1971 |
| Docket Number | No. 7130SC180,7130SC180 |
| Citation | 180 S.E.2d 437,11 N.C.App. 149 |
| Court | North Carolina Court of Appeals |
| Parties | Kathleen Bryson MOORE v. T. D. BRYSON, Jr., and E. C. Bryson. |
Clark & Tanner by Eugene Tanner for plaintiff appellant.
Stedman Hines, Bryson City, and E. C. Bryson, in pro. per. for defendant appellees.
Plaintiff's only assignment of error is directed at the granting of the motion for summary judgment as to the second cause of action. Summary judgment is appropriate if 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.' G.S. § 1A--1, Rule 56(c). The pleadings show that the defendants were appointed executors of the Estate of D. R. Bryson on 27 December 1955. The complaint in the present action was filed 19 January 1970.
The sole question is whether or not the action is now barred by the running of the ten-year statute of limitations, G.S. § 1--56. Plaintiff distinguishes this action for recovery of an undistributed share of an estate from an action for an accounting and contends that the statute of limitations in this action does not begin to run until there has been a demand and a refusal, whereas in an action for an accounting the statute makes a demand two years after the personal representative qualifies.
Plaintiff relies on Pearson v. Pearson, 227 N.C. 31, 40 S.E.2d 477 (1946). There the administrator D.b.n., c.t.a. was in possession of the land under a court order permitting him to continue farming operations. He permitted the land to be foreclosed and bought it himself at the foreclosure sale. An action was brought to declare a constructive trust on the land. The Court held that, in the absence of a demand and refusal, the statute of limitations in an action to impose a constructive trust upon the administrator did not begin to run until the administrator completed and closed the administration.
No constructive trust is sought to be imposed in the present action, rather this involves an express trust. The distinction between an action for recovery of an undistributed share of an estate from an action for an accounting, which the plaintiff seeks to make in this case, is not a valid one.
We think this case is controlled by Edwards v. Lemmond, 136 N.C. 329, 48 S.E. 737 (1904), and Pierce v. Faison, 183 N.C. 177, 110 S.E. 857...
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Moore v. Bryson
...was successfully resisted by E. C. Bryson and his co-executor as being barred by the statute of limitations. (See Moore v. Bryson, N.C.App., 180 S.E.2d 437, filed 28 April 1971). E. C. Bryson contends, however, that his duties as an executor did not extend in any way to the 12-acre tract of......
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Tyson v. North Carolina Nat. Bank, 123
...statute to actions seeking to impose a constructive trust, Jarrett v. Green, 230 N.C. 104, 52 S.E.2d 223 (1949); Moore v. Bryson, 11 N.C.App. 149, 180 S.E.2d 437 (1971). The remedy sought by this action is not to impose a constructive trust or to seek an accounting, as in Jarrett, but is to......