State Ex Rel. Dunn v. Dunn

ConNoe, J. It is well settled as tbe law in this State that where an administrator, who has not fully administered the estate of his intestate, has died or has been removed from his office, an action may be maintained against his personal representative or against him, as the case may be, and the surety on his bond, to recover the amount due by him to the estate of his intestate, by one who has been duly appointed and has duly qualified as administrator d. b. n. of his intestate. Tulburt v. Hollar, 102 N. C., 406, 9 S. E., 430. The failure to account for and to pay such amount is a breach of the statutory bond, C. S., 33. In such case, the cause of action accrues to the plaintiff upon his qualifications as administrator d. b. n. of the deceased, and arises as against both the former administrator and his surety upon a breach of his official bond. The action is, therefore, not barred as to the surety until the lapse of three years from the date of the qualification of the plaintiff as administrator d. b. n. of the deceased. C. S., 441(6). There is no error in the judgment in the instant case, overruling the exception to the referee’s conclusion of law that this action is not barred by the three-year statute of limitation as against the surety. The judgment is Affirmed.