Williams v. McNair

• Decision Date: 05 December 1887
• Parties: WILLIAMS and others v. McNAIR, Adm'r, and others.
• Court: North Carolina Supreme Court

4 S.E. 131

98 N.C. 332

WILLIAMS and others v. McNAIR, Adm'r, and others.

Supreme Court of North Carolina

December 5, 1887

Appeal from superior court, Robeson county.

Junius S. Williams and wife, Mary L., J. L. Smith, S. C. Smith Thomas A. McNeill and wife, Caroline E., in behalf of themselves and all other creditors of the estate of A. S McKay, deceased, plaintiffs, sued John McNair, administrator of A. S. McKay, deceased, D. D. McBryde and wife, Fannie Malcolm McKay and wife, Minnie, Charles McDowell and wife Margarett, and Jane McDowell, heirs of said McKay, to make the real estate of A. S. McKay, deceased, liable for the indebtedness due them by their guardian, on whose bond said McKay was surety. Judgment was rendered in favor of the defendants, except as to McNeill and wife, and two of the plaintiffs appealed.

Frank McNeill, for plaintiffs.

Burwell & Walker, N. A. McLean, and N.W. Ray, for defendants.

SMITH C.J.

In the year 1855, James P. Hodges became the guardian of the plaintiffs, then infants, and executed his bond, with Henry Elliot and Archibald S. McKay his sureties, in the form and with the conditions prescribed by law, for the security of their several estates. Archibald S. McKay died intestate in 1865, and no administrator on his estate was appointed until March 17, 1879, when letters issued to the defendant John McNair. The other defendants are the heirs at law of the said Archibald S., to whom certain lands are alleged to have descended from him. The plaintiffs severally arrived at full age as follows: Mary L., on June 11, 1859; J. L. Smith, on January 26, 1866; S. C. Robinson, on July 13, 1868; and Caroline, who intermarried with the plaintiff Thomas A., in ___, on February 8, 1871. There has been no settlement by either with the guardian, who is still living. Nor does it appear that any one of the wards within three years after attaining majority, by suit or otherwise, called on him "for a full settlement of his guardianship," by suit or otherwise, in pursuance of section 4, c. 65, Rev. St. The present suit, instituted on July 26, 1881, by the plaintiffs on behalf of themselves and all other creditors of said Archibald S., has for its object the subjection of the lands which he owned at his death to the payment of his indebtedness; and to the demand, among other defenses to the action, the answers of the administrator, and the defendant D. D. McBryde and wife, Fannie, set up the bar of the statute of limitations, and the presumption of payment or satisfaction arising from the lapse of time since the execution of the bond, raised under Rev. Code, c. 65, § 18. Under instruction of the court, and in response to the issues upon this point, the jury find that the right of action is barred as to all the plaintiffs, except the said Caroline C., and that no presumption of payment has arisen under the statute.

By the law in force when the three several plaintiffs' cause of action accrued, whose recovery is thus held to be obstructed they were each required to call on the guardian for a settlement on arriving at full age, and this is interpreted by HALL, J., delivering the opinion in Johnson v. Taylor, 1 Hawks, 271, to require more than a mere demand for such...