Pierce v. . Faison

Walker, J., after stating relevant matters; as above-: Tbe facts are so indefinitely stated in tbe pleadings that it is difficult, if not impossible, to arrive at any just or accurate conception of tbe merits of this case. It does not seem, from tbe slight information we can gather from tbe pleadings, that there has been any formal and final settlement between tbe defendant and those interested in tbe estate. It was nothing more than a promise on tbe part of tbe plaintiff to do something which it is alleged by tbe defendant, she failed to do, and hardly more than a negotiation for a settlement. His Honor, therefore, ruled correctly as to tbe plea of a final settlement. As to tbe statute of limitations: We are not so clear as to tbis plea, because tbe facts are so meagerly stated. We said, by tbe Chief Justice, in Brown v. Wilson, 174 N. C., 668, at 670, quoting from Edwards v. Lemmond, 136 N. C., 330: “At tbe end of two years tbe law makes tbe demand and puts an end to tbe express trust, though no express demand is made by any party interested upon tbe executor or administrator. He is in default, and an action will lie at tbe end of tbe two years at tbe instance of any one entitled to have an account in settlement of tbe estate. Self v. Shugart, 135 N. C., at bottom of page 194. It is familiar learning that tbe statute begins to run whenever tbe party becomes liable to an action if tbe plaintiff is under no disability. Eller v. Church, 121 N. C., 269. There having been no action begun within ten years, during which actions could have been brought, tbis action is barred by Tbe Code, sec. 158. Hunt v. Wheeler, 116 N. C., 424. In *180 Wyrick v. Wyrick, 106 N. C., 84, this was intimated and was reaffirmed in Kennedy v. Cromwell, 108 N. C., 1. Grant v. Hughes, 94 N. C., 231, and Bushee v. Surles, 77 N. C., 62, relied on by the plaintiff, were both eases where the original administration began under the law prior to The Code, as is stated by Davis, J., in Woody v. Brooks, 102 N. C., 344. The same is true of Phifer v. Berry, 110 N. C., 463. At that time such actions were governed by the former law. The Code, see. 136; Brittain v. Dickson, 104 N. C., 547. But section 136 has been repealed by Laws 1891, ch. 113, and the statute of limitations prescribed by The Code is applicable to this case, though original administration was taken out in 1866.” The right of action for legacies and distributive shares, or to have an accounting with an executor and a settlement, accrues two years from his qualification. Rev., secs. 144 and 147. The executor is required to distribute and pay over the assets to those entitled thereto at that time, and if he fails to do so, they may sue for the same. Rev., sec. 360, eh. 12, provides that civil actions can only be commenced within the periods prescribed in this chapter, after the cause of action shall have accrued, except where in special cases a different limitation is prescribed by statute. But the objection that the action was not commenced within the time limited can only be taken by answer. The Code, sec. 138; O. C. P., sec. 17. It was upon those sections that the cases above cited were' decided. Whether the statute of limitations bars this action we cannot decide until we know all the facts, which are not now before us. It may be that it is not barred, and that defendant is liable to account for any trust funds in his hands, but he says that there are none such, as he had fully accounted for them and paid them over to the proper persons entitled to receive them. It is well settled by us that when the statute is pleaded, the burden is then upon the plaintiff, or party against whom it is set up, to show that his action was commenced within the time limited by the law, and not upon the defendant, or the one who pleaded it, to show the contrary. House v. Arnold, 122 N. C., 220; Houston v. Thornton, ibid., 365; Hooker v. Worthington, 134 N. C., 283, at 285; Gupton v. Hawkins, 126 N. C., 81; Sprinkle v. Sprinkle, 159 N. C., 81; Ditmore v. Rexford, 165 N. C., 620. This being so, it was not proper to deny the plea without a trial. It may be admitted, however, that if defendant, as executor, has any of the trust funds in his hands and plaintiff shows that her action was brought in time, he will have to account for them. But it is to be fairly inferred from his answer that there are none now in his possession, he having fully accounted for them. But the evidence will reveal the true state of the case, and until it, or proper findings of the facts are before us, we are unable to say what is the executor’s liability, *181 if any, and if any, bow mucb. We are required to give tbe defendant’s answer a liberal and favorable construction, for tbe purpose of ascertaining its meaning, tbougb informally expressed (Blackmore v. Winders, 144 N. C., 215; Brewer v. Wynne, 154 N. C., 467), and tbus considered, it raises an issue as to tbe statute of limitations, witb tbe burden upon tbe plaintiff to show that sbe is not barred. If not barred, sbe will be entitled to have tbe r.eferee proceed, under tbe order of tbe court, to take and state tbe account, witb bis conclusions of fact and law. It may well be added that C. S., 439, subsec. 2 (Bev., sec. 393), and C. S., 441, subsec. 6 (Bev., sec. 395), relate to actions against executors, administrators, etc., on their official bonds, and not against an executor, administrator, etc., for a simple account and settlement. Defendant is relying, in this case, as we infer, on C. S., 445 (Bev., sec. 399; C. C. P., sec. 37), and tbe other statutes specially mentioned in bis answer. There was error on tbe plea of tbe statute' of limitations, and, as to that plea a new trial is ordered. New trial.