Benson v. . Bennett

*507 Clahic,- J.: The defendant’s intestate died on the 9th of -July, 1885, and administration was granted on his estate on the 21st of August, 1885. The auction sales, for the balance due from which this action is partly brought, took place on the 24th of May, 1884, and this action was begun on the 5th of July, 1887. As we understand it, the only question presented by the appeal is whether under a proper construction of section 164 of Ifthe Code this demand is barred, for as to the account for goods sold and delivered, if the last item of the account was, as averred, on the 6th of May, 1876, that part of the plaintiff’s demand is clearly barred. Section 164 of The Code is an enabling not a disabling statute. It means that if at the time of the death of the debtor the claim is not barred action may be brought within one year after the grant of letters to the personal representative in those cases where, in regular course, but for the interposition of this section, the claim would become barred in less time than one year from such grant. It was not intended to be a restriction on the statute of limitations so that a claim should become barred by the lapse of a year from the grant of letters, where, in regular course, but for this section, it would not be barred till a later date. The object in view is that when the cause of action survives and is not barred at the time of the death, there shall he at least one year after the death of the creditor, or one year after the grant of letters of administration to the personal representative of the debtor, before action is barred. This is conclusively shown by the words of the section, that if the party die before the claim is barred action may be brought “ after the expiration of the time limited, and within one year.” Coppersmith v. Wilson, 107 N. C., 31, decides nothing more than the distinction that, though the one year allowed by section 164 is counted from the death of the creditor, it is *508 counted only from the grant of letters when it is the debtor who dies. Although more than a year had elapsed in this case after the grant of letters of administration before suit brought, yet, excluding the time between the death of the debtor (July 9, 1885) and the issue of letters of administration (August 21, 1885), the time elapsing between the sale (May 24, 1884) and the bringing of this action (July 5, 1887), only two years eleven months and twenty-nine days had passed, and in no view could the three years’ statute of limitations apply. It is only when that might otherwise apply that section 164 can have place and extend the time. This renders it unnecessary to consider the question raised, whether on the facts of this case a demand was necessary to set the statute in motion. Error.