Flemming v. . Flemming

Smith, C. J. There are exceptions to portions of the testimony of the plaintiff, as incompetent under the provisó of section 348 of the Code, which we deem it unnecessary to consider, and confine ourselves to an examination of the rulings of the court in reference to the instructions given the jury. It is quite plain under numerous adjudications, that what transpired between the parties is not such a recognition of a subsisting claim as-repels'the statute; and if it were, would be ineffectual unless - in writing, under section 51 of the Code. It is equally-well settled that the death of the debtor, after' the cause of action has accrued, will not suspend the running of the statute to the completion of the prescribed time. It seems also that'a distinct acknowledg *129 ment and promise made by an executor or administrator and based upon a sufficient consideration, imposes á personal liability upon the representative, but does not take away the protection afforded by the lapse of' time to the estate represented. Fall v. Sherrill, 2 Dev. & Bat., 371; Oates v. Lilly, 84 N. C., 643. The action then cannot be maintained unless the running of the statute is arrested by the presentation of the claim to the personal representative and his admission of the indebtedness of the deceased, under the recent legislation “ concerning the settlement of the estates, of deceased persons,” (Bat. Rev., ch. 45,) upon which we understand the ruling of His Honor to have been founded. An examination of certain sections of the enactment in connection with its general scope and maüifest purpose, even in the absence of express declarations of this import, leads us-to concur in this interpretation of its meaning and force,, and we refer to some of the provisions which sustain the-.conclusion: Where a copy of the notice directed to be given by publication (sec. 45, 47) is personally served upon the creditor of a deceased debtor, he is required within six months thereafter to exhibit his claim to the personal representative, or be forever barred from maintaining any action thereon against such representative. Sec. 48. Upon its presentation, the' affidavit of the creditor or “ other satisfactory evidence” of its validity and amount may be demanded. Sec. 49. If it be doubted, the parties are authorized to agree to a reference, which agreement and the award thereon shall be filed in the probate court, subject to impeachment for fraud, error or irregularity. Sec. 50. If it be rejected by the executor, administrator or collector and not adjusted by reference, the claimant must sue in six months after notice of rejection. Sec. 51. If action is brought when there has been no unreasonable *130 delay in payment, the plaintiff is not allowed his costs. Sec. 54; May v. Darden, 83 N. C., 237. Again, where a creditor’s suit is brought (sec. 73) the personal representative must on oath render to the clerk a list of “ all claims against the deceased of which he has received notice or has any knowledge, with the names and residences of the claimants,” and any who have failed to file evidence of their claims must be notified by the clerk to produce it. Sec. 80. The clerk is directed to exhibit to the representative on the day fixed for his appearance “ a list of the claims filed in the office with the evidence thereof.” Section 81. Within five days afterwards the defendant shall in writing specify the claims he disputes, and the creditor upon being notified of the objection must thereupon file a complaint based upon his claim, and proceed as in an action ■begun by summons. Section 82. Other creditors may exercise the right to contest the demand. Oates v. Lilly, supra. A judgment, subject to certain exceptions, simply ascertains the debt. Section 95. . But whatever doubts may have been entertained as to the meaning and force of these provisions, they are removed by the recent act, amending chapter 17, section 43, of Battle’s Revisal, by adding these words: “ But if the claim upon which such cause of action is based be filed with the executor or administrator within the time above specified and the same shall be admitted by him, it shall not be necessary to bring an action upon such claim to prevent the bar; provided, that no action shall be brought against the administrator or executor upon such claim after the final settlement of said executor or administrator; and this shall apply to claims already filed. Act 1881, ch. 80. It is plain the facts of the present case are not within the purview of the law as previously existing or as modified by *131 this statute. The plaintiff never presented his claim or any proof of it, but is content, upon a simple announcement of its amount followed by no response from the defendant, to rest for a period sufficient to bar the recovery under the general statute of limitations, even if his cause of action had then first accrued. The case is unlike that of Hawkins v. Long, 74 N. C., 781, in which a silent acceptance of a rendered account against a person is held to be evidence of its correctness, since here, the work was not done for the plaintiff, and lie may have had no personal knowledge or reliable information about the claim to call from him an admission or denial, and hence no inference of assent can be drawn from his failure to respond to charge the estate. If the claim had been presented in the form of a bill of particulars, the plaintiff had the right to demand an explicit answer, and if refused, to enforce his claim by action, and perhaps under the recent enactment deem its acceptance without remark as arresting the running of the statute. There was no evidence of the defendant’s assent to the asserted claim, and the jury should have been so instructed. There is error in refusing so to charge and there must be a new trial. Let this be certified. Error, Venire de novo,