Opinion
(June Term, 1830.)
1. There being in the act of 1715 (Rev., ch. 10) no saving of the rights of persons under any incapacity, that act is a bar to the claim of an infant creditor of the decedent, preferred more than seven years after his death.
2. The act of 1715 is a protection both to the executor and the heir, and the acts of 1784 and 1809 (Rev., chs. 205 and 763), directing the surplus to be paid into the Treasury and to the University, do not affect the real assets, but apply only to the personal estate, and give a remedy to the creditors, etc., against the State and the University, without affecting the protection given to the executor by the act of 1715.
3. Where a cause of action accrues against the estate of a decedent after his death, when does the limitation prescribed by the act of 1715 begin to run. Qu.?
DEBT upon an administration bond, executed by the ancestor of the defendants, as surety of Edward C. Outlaw, upon his taking out letters of administration on the estate of John Freeman, the father of the relator. The breach assigned was the nonpayment of the distributive share of the intestate's estate, to which the relator was entitled.
No counsel appeared for plaintiff.
Hogg, for defendant.
FROM BERTIE.
After oyer of the condition which was in the common form, the defendant pleaded, among other pleas, the act of 1715 (Rev., ch. 10, sec. 7), whereby claims, not made against the estate of a deceased debtor within seven years after his death, are barred. On the trial it appeared that the relator was an infant at the death of his father and at the commencement of the present action, and that more than seven years had elapsed between the death of the ancestor of the defendants and the issuing of the writ.
A verdict was returned for the plaintiff, subject to the opinion of the presiding Judge upon the question of law arising upon these (339) facts; and his Honor, Judge MANGUM, being of opinion that the statute was a bar, set aside the verdict and directed a nonsuit to be entered; whereupon the plaintiff appealed.
The act of 1715, Rev., ch. 10, sec. 7, is in terms an unqualified bar, without saving or exception in favor of any incapacity or case whatsoever. It seems to have been designed to be emphatically a statute of repose in favor of dead men's estates, without a single exception. It is founded upon the policy that the few instances of private injustice arising under it had better be tolerated than that heirs who had improved their inheritances should lose them, and executors and administrators be subjected to debts after the lapse of so long a period from the debtor's death. If this did not appear from that part of the statute now remaining in force, and to be found in our Revisal, it is made manifest from the residue of the section, as it originally passed. For that enacts that all such money as may remain in the hands of the administrator after the term of seven years, and not recovered by any next of kin or creditor of the deceased in that time, shall be paid to the church wardens and vestry, to and for the use of the parish, where the said money shall remain. It is impossible to suppose that the administrator could be held liable, therefore, under any circumstances, to anybody but the parish after the seven years. And if he was not, neither was the heir; for the act goes to the whole estate. It is true that by a subsequent law (1784, Rev., ch. 205) the administrator is to pay the surplus into the Treasury; and it is to be subject to creditors or representatives without limitation of time. But this creates no liability on the part of the administrator, much less the heir. For (340) the recovery from the Treasury is not to be made through the administrator, and is therefore a mere public bounty bestowed by legislative sanction, in each case, under a sense of justice, and not by judicial sentence, since the State cannot be sued. It is likewise true, that by the act of 1809 (Rev., ch. 763) the University is substituted in the place of the Treasury, and a term of ten years more is given for claim by creditors, legatees, and next of kin. But here again the demand must be held to be one directly against the University, and not against the executor; for the trustees are put in the place as well of legatees as creditors. But both of these acts are subject to the decisive observation that they extend to the personal estate only. The case of the heir remains untouched since the act of 1715. I am aware of the conflicting decisions in McLellan v. Hill, 1 N.C. 595, and Jones v. Brodie, 7 N.C. 594, and must say I am not satisfied with the latter, for the reasons I have just given, although I gave similar decision on the circuit, anterior to that case. There is a difficulty I am now unable to get clear of. Unless the death of the debtor be the terminus, if I may use the expression, from which the time runs, there is no limitation whatever. For, suppose a debt to fall due eight years after the debtor's death, there is nothing in the act to restrain the creditor to seven years from that time. The only limitation in the statute is from the debtor's death; and if the period begin not then it can have no beginning nor ending with this act. These observations are, however, exclusively my own. This case does not require that we should decide between the two cases mentioned. For the plaintiff, although an infant, was in existence, and the debtor also, during the whole term of the seven years; and if there were no other breach of the bond that of not returning an account was one (341) for which the bond might have been put in suit and ripened into a judgment.
That is the point of the present decision, and to that alone will the case be authority.
PER CURIAM. Affirmed.
Cited: Goodley v. Taylor, 14 N.C. 182; McKeithan v. McGill,, 83 N.C. 519; Rogers v. Grant, 88 N.C. 443; Syme v. Badger, 96 N.C. 208; Daniel v. Grizzard, 117 N.C. 111.