Wyrick v. . Wyrick

Shepherd, J.: The only question necessary to be considered in order to dispose of this appeal is whether the claim represented by James Webb, as administrator de bonis non of Jane Green, is barred by the statute of limitations. When George Wyrick, the administrator of the said Jane Green, filed his ex parte final account, on the 11th of May, 1875, it did not have the effect of closing the trust as between him and the distributees, so as to put in operation any statute of limitation for a shorter period than ten years. Before the adoption of the Code of Civil Procedure there was no statutory limitation or presumption which w'as put in force by the simple filing of such an ex parte final account, and the Courts applied only the common law presumption of payment arising from the lapse of many years of inaction. Davis v. Cotten, 2 Jones’ Eq., 435; McCraw v. Fleming, 5 Ired. Eq., 348. For the reasons given in Woody v. Brooks, 102 N. C., 334, we think that The Code, § 159 (which bars all actions in ten years which are not specially provided for), applies to’ such cases, as it does also to an action brought to impeach such final account. We are of this opinion because it was the evident purpose of The Code to prescribe a period of limitation to all actions whatsoever, and thus make it a complete statute of repose. Where, however, there has been a settlement between the trustee and cestui que trust, or a final *87 determination of the amount due by a decree of Court, the trust is closed, and an action will be barred within three years from a demand and refusal. Spruill v. Sanderson, 79 N. C., 466; Whedbee v. Whedbee, 5 Jones’ Eq., 393; Barham, v. Lomax, 73 N. C., 78; Woody v. Brooks, supra. Applying these principles to the case before us, it is clear that up to the time of the commencement of this proceeding, in 1884, the claim of the distributees was not barred. Only eight years ran against the distributees up to the death of the administrator, and this proceeding was commenced by his executor about a year afterwards. So that, from the filing of the final account in 1875 to the beginning of the proceeding, but nine years have elapsed. Even if the trust had been closed by a decree declaring a balance due the distributees, the claim would not be barred, as it does not appear that there was any demand and refusal. If, then, the claim was not barred when this proceeding was instituted it is not barred at all, as the very purpose of the proceeding is to subject the lands of the testator to the payment of this and all other indebtedness of the estate. James Webb, the administrator de bonis non, was not a necessary party, since, for the purposes of the proceeding, he and all others having legal demands against the estate were represented by the plaintiff executor. Especially is this true as to this particular claim, as the executor acknowledges it, and asks that it be paid. His Honor was, therefore, correct in holding that the claim was not barred. Judgment affirmed.