Moore v. Bryson

CAMPBELL, Judge. Plaintiff’s only assignment of error is directed at the granting of the motion for summary judgment as to the second cause of action. Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” G.S. 1A-1, Rule 56(c). The pleadings show that the defendants were appointed executors of the Estate of D. R. Bryson on 27 December 1955. The complaint in the present action was filed 19 January 1970. The sole question is whether or not the action is now barred by the running of the ten-year statute of limitations, G.S. 1-56. Plaintiff distinguishes this action for recovery of an undistributed share of an estate from an action for an accounting and contends that the statute of limitations in this action does not [151] begin to run until there has been a demand and a refusal, whereas in an action for an accounting the statute makes a demand two years after the personal representative qualifies. Plaintiff relies on Pearson v. Pearson, 227 N.C. 31, 40 S.E. 2d 477 (1946). There the administrator d. b. n., c. t. a. was in possession of the land under a court order permitting him to continue farming operations. He permitted the land to be foreclosed and bought it himself at the foreclosure sale. An action was brought to declare a constructive trust on the land. The Court held that, in the absence of a demand and refusal, the statute of limitations in an action to impose a constructive trust upon the administrator did not begin to run until the administrator completed and closed the administration. No constructive trust is sought to be imposed in the present action, rather this involves an express' trust. The distinction between an action for recovery of an undistributed share of an estate from an action for an accounting, which the plaintiff seeks to make in this case, is not a valid one. We think this case is controlled by Edwards v. Lemmond, 136 N.C. 329, 48 S.E. 737 (1904), and Pierce v. Faison, 183 N.C. 177, 110 S.E. 857 (1922). In the latter case it is stated: “The right of action for legacies and distributive shares, or to have an accounting with an executor and a settlement, accrues two years from his qualification. . . . The executor is required to distribute and pay over the assets to those entitled thereto at that time, and if he fails to do so, they may sue for the same. . . .” Here the claim or cause of action accrued on 27 December 1957, two years after the qualification of the defendants as executors and the statute of limitations began running at that time. No disability having been alleged or shown, the action was barred by the statute of limitations at the time it was commenced, and hence the motion for summary judgment was properly granted. Affirmed. Judges Britt and Graham concur.