Lawrence v. . Norfleet

Smith, C. J., after stating the case. While the right of action against the defendant was in abeyance until the issue of letters de bonis non on the estate of Lloyd to the plaintiff, and the statute was suspended because there was no one competent to sue, it did then vest in the plaintiff and the -statute was put in motion to run its course. The limitations prescribed in the Code of Civil Procedure, which govern the present case, require an action to be brought “ by any creditor of a deceased person against his personal or real representative within seven years next after the qualification of the executor or administrator, and his making the advertisement required by law for creditors of the deceased to present their claims, where no personal service of such notice in writing is made upon the creditor.” The Code, §153. This statute is construed in Cox v. Cox, 84 N. C., 138, and it is held that Avhile the advertisement is an indispensable prerequisite to the operation, it is incidental, and the time must be computed from the qualification of the representative. The statute then had run and completed its course on the 31st day of March, 1880, or rather on the day preceding, and the suit was not begun until the 2d day of the next month. Our present limitations in favor of estates of deceased persons are unconnected with assets, and are absolute and positive in denying the remedy after a given time, and are intended to stimulate the vigilance of creditors and give repose to the estates of deceased debtors. There is error, and it is adjudged that the defendant go without day and recover his costs. Error. Reversed.