Morris v. . Syme

Ruffin, J. If driven to decide the question, the court might *455 find some difficulty in sustaining the right of action which the plaintiffs have undertaken to assert in this case. They sue upon the bond which was executed by the first administrator on the estate of Hugh E. Lyon, deceased, and complain of a devastavit committed by that officer. So that, as to the estate of the defendant’s intestate, Trice, who was surety on that bond, they occupy the relation of creditors merely; and it has been frequently declared in this court, that in no case can a creditor, in the event of the death of an administrator, sue the sureties on his bond in an action at law; but that, that right inures only to an administrator de bonis non of the intestate, upon whom alone devolves the duty of settling the unadministered assets. Conrad v. Dalton, 3 Dev., 251; Ferebee v. Baxter, 12 Ired., 64. In Walton v. Pearson, 85 N. C., 34, the question arose as to whether this difficulty on the part of a creditor could be overcome by his making the administrator de bonis non a party defendant with the surety on the bond, but it was not found necessary to decide it. Neither is it necessary that we should decide it now, since, in the opinion of this court, the case is certainly with the defendant upon the plea of the statute of limitations. In their argument, the counsel treated the case as coming within sub-division 2 of section 32 of the Code of Civil Procedure, and really it matters but little whether we so consider it, or as falling under the act of 1715 (Rev. Code, ch. 65, § 11) for, as expounded by the courts, either statute would give complete protection to the defendant under the facts as they are found to exist in the case. But, inasmuch as the execution of the bond sued on and the breach complained of both preceded the adoption of the Code, the case is clearly to be governed by the latter statute. That statute provides that creditors shall make their claim within seven years after the death of their debtor, or be forever barred; and according to every interpretation which has been put upon its terms, it works a complete bar to every demand, *456 due at the death of the debtor, upon which suit is thereafter delayed for seven years, provided it shall appear that in the meantime the estate has been fully administered, so that nothing remains in the hands of the administrator, with which to satisfy the claim. Godley v. Taylor, 3 Dev., 178; Cooper v. Cherry, 8 Jones, 323; McKeithan v. McGill, 83 N. C., 517. In our case, the demand was due at the death of the debtor; seven years or more have elapsed, the entire estate has been fully administered, and the administrator, after filing his final account, has been discharged under a decree of the court; so that, every requirement is found to exist in the case, which is held to be necessary to render the statute a complete bar to the demand of the plaintiffs. No error. . Affirmed.