Thornton v. Jackson

Lumpkin, J. (After stating the foregoing facts.) 1-3. “All actions against executors, administrators, guardians or trustees, except on their bonds, must be brought within ten years after the right of action accrues.” Civil Code, §3772. This was [703] an action by persons claiming under a legatee of -a will against the executor of the legal representative of the original estate, alleging that a distributive share of the estate was wrongfully withheld from their ancestress, to whose right they claimed to have succeeded, and from them. It was an action against an executor or administrator (or his legal representative, standing in his stead), and it was just the character of suit to which the section of the code above quoted applied. Ten years was therefore the period of limitation which would bar the action, and not four years, as in the ease of a mere creditor by account against the estate or its representative. Ten years began to run from the time when the cause of action accrued, and continued to run, unless it was suspended for some legal reason. The petition alleged that Needham Jackson reduced the assets of the estate of Jordon Jackson to cash prior to the first day of January, 1867, and had wrongfully held and retained the share of the estate belonging to their ancestress, Mary Jackson Thornton, and to them, from that date to the day of his death. They sought to recover interest on the amount for which suit was brought from January 1, 1867. Thus the petition on its face fixed that date as the time when the possession of Need-ham Jackson became wrongful, when the plaintiffs or their ancestress had a right to recover, when interest began to run in their favor, and consequently when the statute of limitations also began to run against them. Unless, therefore, the petition showed some legal reason why the statute was suspended, the action was barred. It was alleged that Mary Jackson Thornton died on September 1, 1863. Two of the present plaintiffs claimed as her children. At her death she also left other children, under two of whom the other plaintiffs claimed as heirs. None of the ages of her children were given. All must have been born before her death, and the joungest must have been of age in 1884. The present suit was brought in July, 1906. So that two of the plaintiffs were unquestionably barred in 1894, and the other two children of the legatee were then barred, if alive. The plaintiffs failed to allege when the two deceased children of Mrs. Thornton died. Nor did they allege their own ages, so as to show any suspension of the statute. The bar of the statute of limitations does not run against a continuing executory trust until its termination or repudiation. »But the mere wrongful retention by an administrator of funds due to [704] an heir or legatee, after the estate is ripe for distribution and the fund ought to be paid over, does not stand on the basis of such a continuing executory trust. If on the face of the petition it appears that the action is barred by the statute of limitations, a demurrer will lie on that ground. If it does not so appear, a plea is the proper method of setting up the defense. In some cases, where it was doubtful when the right of action had accrued, or whether a trust was continuing, a plea was held to be the more appropriate mode of defense. Coney v. Horne, 93 Ga. 723; Lane v. Lane, 87 Ga. 268. In some of the decisions suit was delayed until long-after returns had been made, or after an administrator had been, discharged; and the plaintiffs were held to be barred. But the real, test is, when did the right of action accrue? From-that time the-statute begins to run, unless suspended for some reason provided by law. As already shown, the plaintiffs alleged that the right- of' action which they sought to enforce accrued prior to January 1, 1867, and suit was filed nearly forty years later. The suit was barred, and the petition was properly dismissed. We have not dealt with the question of the right of the plaintiffs-to bring suit to recover the distributive share of their mother and grandmother, as her heirs or descendants, without showing that there was no administration, or that they had the assent of the administrator on her estate, because, under what has been said above, they were barred on the face of their petition. See, on the general subject, Akins v. Hill, 7 Ga. 573; Jacobs v. Pou, 18 Ga. 346; Morgan v. Woods, 69 Ga. 599 (4); Hartley v. Head, 71 Ga. 95; Payne v. Bowdric, 110 Ga. 549 (3) 557. 4. The proposed amendment set out mere legal conclusions, not' facts. It would not have cured defects in the petition, and was properly rejected. Judgment affirmed. All the Justices concur, except Holden, J.,. who did not preside.