Love v. . Ingram

Merrimon, C. J. — after stating the case: The plaintiffs obtained judgment against the defendant, founded upon a cause of action existing against his testator at the time of the latter’s death, and the purpose of this action, allowed by the statute (The Code, § 1448), is to compel the defendant “to an account of his administration, and to pay the creditors (including, particularly, themselves, as to their judgment) what may be payable to them, respectively.” The defendant relies for his defence upon the statute of limitation (The Code, § 153, par. 2), which prescribes that an action must be brought “by any creditor of a deceased person against his *602 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, when no personal service of such notice, in writing, is made upon the creditor,” &c.,. else the same shall be barred. If it be granted that this statute embraces cases like the present one, the defendant, so far as appears, is not entitled to the benefit of it, because he has failed to allege and prove-that he made “the advertisement required by law for creditors of the deceased to present their claims,” or that “personal service of such notice (that prescribed by the statute, The Code, §§1421-1424), in writing,” was given to the plaintiffs as prescribed by law. It will be observed that mere-lapse of time does not of itself create the bar It is this, coupled with notice given by advertisement or personal-service, that creates and renders it effectual. The time does not begin to run from that of the notice given, but from the date of the qualification of the executor or administrator. Although the notice is only incidental, it is, nevertheless, essential, and must be alleged and proven. It is reasonable and just that it should be given, and the statute expressly provides that it shall be. The statute will not help the executor or administrator if he fails to observe its requirements. Cox v. Cox, 84 N. C., 138; Lawrence v. Norfleet, 90 N. C., 533; Glover v. Flowers. 95 N. C., 57. The statute under consideration is not unlike, in some respects, the similar one (Rev. Code, ch. 65, §11), and, in order to render the former available, the party claiming benefit of it must plead it and make appropriate proof in like manner, in pertinent respects, as was necessary in pleading the latter. Rogers v. Grant, 88 N. C., 440; Little v. Duncan, 89 N. C., 416; Glover v. Flowers, supra. There is, therefore, error. The plaintiffs are entitled to -an order directing an account, and to have the action disposed of according to law. Error.