Mecklenburg County v. Lee

BROCK, Judge. The first argument advanced by the administratrix c.t.a., Mrs. Lee, is that the county’s -claim against Mrs. Campo’s estate [241] is barred by the three year statute of limitations found in G.S. 108-30.1 (G.S. 108-33 after 1969). G.S. 108-30.1 provided for a lien upon the real property of persons who receive old age assistance payments and it created a limitation of three years from the death of the recipient within which time a county could enforce the lien. This statute also provided that the payment of this assistance created a general claim against the estate of the recipient, and no limitation was set for the assertion of this claim. Mrs. Lee argues that the statute of limitations for the lien should also be applied to the claim against the estate. This court has however previously stated that “[s]ince the assistance was terminated by death of the recipient . . . the claim must be enforced according to the law pertaining to administration of estates.” Brunswick County v. Vitou, 6 N.C. App. 54, 57, 169 S.E. 2d 234, 235. The question now is what statute of limitations applies and when did it begin to run. There is no specific statute of limitations provision given in Chapter 28 of the General Statutes (Administration of Decedent's Estates) ; therefore, it is necessary to turn to the general statutes of limitation, G.S. 1-22 is the appropriate statute. It reads in part: “If a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced against his personal representative after the expiration of that time, and within one year after the issuing of letters testamentary or of administration, provided the letters are issued within ten years of the death of such person.” Letters of administration were issued in this estate within ten years of Mrs. Campo’s death and this action was instituted within one year after the qualification of the administratrix c.t.a. [It should be noted that there is no authority in North Carolina which compels a creditor to seek affirmatively to administer an estate in order to toll the running of the statute of limitations although G.S. 28-6(3) permits a creditor to seek letters of administration.] In the case at hand an administratrix for the estate was not appointed until 9 March 1971. G.S. 28-47 provides that within twenty days of the granting of letters the administrator shall notify all creditors to present their claims within six months from the first publication of such notice. Assuming such notice was given here, the county did present their [242] claim within the six month period. The administratrix rejected the claim and the county filed their complaint approximately one month later. This complied with G.S. 28-112 which requires the creditor to prosecute his claim within three months after being notified of the rejection by the personal representative of the decedent. The second argument made by the administratrix c.t.a. is that the determination that the county’s lien was barred by the statute of limitations in the first proceeding constitutes res judicata to the subsequent claim against the estate. The issue was not the same in the two actions. The first action was to enforce a specific lien against real estate. This action is to recover for a claim against the estate of the deceased recipient. This assignment of error is overruled. We are advertent to the action of the legislature in repealing G.S. 108-29 through 108-37.1, effective 16 April 1973. Session Laws 1973, Chap. 204. However, this repealing act by its terms does not apply retroactively. Affirmed. Judges Morris and Vaughn concur.