Winslow v. Benton

• Decision Date: 04 March 1902
• Citation: 130 N.C. 58,40 S.E. 840
• Court: North Carolina Supreme Court
• Parties: WINSLOW v. BENTON et al.

40 S.E. 840

130 N.C. 58

WINSLOW

v.BENTON et al.

Supreme Court of North Carolina.

March 4, 1902.

ADMINISTRATORS—RIGHTS OF ACTION AGAINST DECEDENTS—LIMITATIONS—SUSPENSION —DEATH OF CREDITOR.

1. Code, § 164, provides that if oue 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 by his representative after the expiration of that time and within one year from his death; and that, if the claim be against the decedent, and is not barred at his death, action may be brought within one year after the issuing of letters testamentary or of administration. Held, that where a debtor died in 1883, and letters of administration were not taken out until 1S99, action could be brought against his estate upon all causes of action which survived, and which were not barred at his death, within one year after the issuing of such letters, although, but for his death, such actions would have been barred.

2. The death of some of decedent's creditors between the time of his death and the issuing of the letters of administration, and failure to bring action, on their claims within one year after their death, did not cause their claims to be barred before one year after the issuing of the letters of administration upon decedent's estate, since up to the issuing of such letters there was no one to sue.

Appeal from superior court, Perquimans county; Brown, Judge.

Petition by Jordan Winslow, administrator, against Charles Benton and others, to convert lands into assets for payment of debts. From a decree in favor of defendants, petitioner appeals. Reversed.

Between the time of the death of petitioner's intestate and the issuing of letters of administration, the time prescribed by the statute of limitations within which certain of decedent's debts might have been sued on, but for his death, expired, and cer tain of decedent's creditors, whose debts were not barred at his death, died within the same period, and no action was brought upon their claims within one year after their death.

E. F. Aydlett, for appellant

J. Heywood Sawyer, for appellees.

CLARK, J. The Code, section 164, is explicit that where the "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 by his representatives after the expiration of that time and within one year from his death." This is because the law does not encourage remissness on the part of the creditor. Coppersmith v. Wilson, 107 N. C. 31, 12 S. E. 77. But the same section (164) prescribes a different rule where the debtor dies: "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 survive, an action may be commenced against his personal representative after the expiration of that time, and within one year after the issuing of letters testamentary or of administration." Dunlap v. Hendley, 92 N. C. 115; ...