Lowder v. . Hathcock

Clark, C. J. T. A. Lowder qualified as guardian of Nancy Adderton, a lunatic, in 1854, and filed bis last annual account in November, 1858. Sbe died in 1887 or 18§8, and D. T. Low-der qualified as ber administrator 9 November, 1901. T.’ A. Lowder, tbe guardian, died in 1899, and T. A. Hatheock qualified as bis administrator 13 September, 1899. Tbe annual account filed in 1858 showed a balance tben in tbe bands of tbe guardian of $1,087.10, and this action is to recover said sum, with compound interest from that date. Tbe guardian survived bis ward eleven or twelve years; and if action had been brought during bis lifetime doubtless be would have shown some disbursements on account. 6f bis ward in tbe thirty years between 1858 and 1887 or 1888, when sbe died, if not of all tbe fund. Of course, no statute runs against an express trust, but tbe express trust was terminated by ber death (Parker v. Harden, 121 N. C., 58; Faggart v. Bost, 122 N. C., 522 ; Dunn v. Dunn, 137 N. C., 534; 15 A. and E. Ency., 45), as was also tbe disability of ber lunacy. It was then incumbent upon tbe ward’s distributees to have letters of administration taken out and to call for an accounting. There is a distinction as to tbe suspension of tbe statute when tbe debtor dies and when tbe creditor. When tbe latter dies, as in this case, Tbe Code, sec. 164 (tben in force, now Revisal, sec. 367), provided: “If a person entitled to bring an action dies before tbe expiration of tbe time limited for tbe commence- *440 merit 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 not cut down the time given by the general statute, but extends it (if not expired) to at least one year after death of a creditor and at least one year after issuing letters to the representative of a debtor. Person v. Montgomery, 120 N. C., 111. But whether the three-year or six-year or ten-year statute bars (all of which are pleaded), is immaterial, as more than thirteen years elapsed after the ward’s death before this action began. When there is at the death remaining unexpired any part of the time limited, but it will expire in less than “one year after the death” of the creditor, or in less' than “one year 'after issuing ■letters” on the debtor’s estate, such “one year” includes, and is not added to, the unexpired statutory time. - « In this case the guardian had been exposed to an action for over eleven years after the death of the ward, and the time limited for an action against him had expired at his death. Even if it had not quite expired, this action was not begun until more than “a year” (in fact, more than two years) “after issuing letters” to his administrator. Coppersmith v. Wilson, 101 N. C., 31; Winslow v. Benton, 130 N. C., 58. In every aspect the plea of the statute was a complete bar, and it was properly sustained. Affirmed.