{ "id": 8651883, "name": "D. L. and J. T. LOVE. Ex'rs of JOHN LOVE v. JOHN INGRAM, Ex'r of DILLARD LOVE", "name_abbreviation": "Love v. Ingram", "decision_date": "1889-09", "docket_number": "", "first_page": "600", "last_page": "602", "citations": [ { "type": "official", "cite": "104 N.C. 600" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "89 N. C., 416", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683322 ], "opinion_index": 0, "case_paths": [ "/nc/89/0416-01" ] }, { "cite": "88 N. C., 440", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683270 ], "opinion_index": 0, "case_paths": [ "/nc/88/0440-01" ] }, { "cite": "95 N. C., 57", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272940 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/95/0057-01" ] }, { "cite": "90 N. C., 533", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8698070 ], "opinion_index": 0, "case_paths": [ "/nc/90/0533-01" ] }, { "cite": "84 N. C., 138", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8687675 ], "opinion_index": 0, "case_paths": [ "/nc/84/0138-01" ] } ], "analysis": { "cardinality": 336, "char_count": 5799, "ocr_confidence": 0.552, "pagerank": { "raw": 2.434020321767573e-07, "percentile": 0.8023651185841336 }, "sha256": "109abf5a3e89f747b601edfb3dc12e60e9dbbe0bdac119c7c9584256eda16633", "simhash": "1:72d75f756f243644", "word_count": 1003 }, "last_updated": "2023-07-14T17:01:43.175763+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "D. L. and J. T. LOVE. Ex\u2019rs of JOHN LOVE v. JOHN INGRAM, Ex\u2019r of DILLARD LOVE." ], "opinions": [ { "text": "Merrimon, C. J.\n\u2014 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\u2019s death, and the purpose of this action, allowed by the statute (The Code, \u00a7 1448), is to compel the defendant \u201cto an account of his administration, and to pay the creditors (including, particularly, themselves, as to their judgment) what may be payable to them, respectively.\u201d The defendant relies for his defence upon the statute of limitation (The Code, \u00a7 153, par. 2), which prescribes that an action must be brought \u201cby any creditor of a deceased person against his 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,\u201d &c.,. else the same shall be barred.\nIf 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 \u201cthe advertisement required by law for creditors of the deceased to present their claims,\u201d or that \u201cpersonal service of such notice (that prescribed by the statute, The Code, \u00a7\u00a71421-1424), in writing,\u201d 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.\nThe statute under consideration is not unlike, in some respects, the similar one (Rev. Code, ch. 65, \u00a711), 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.\nThere is, therefore, error. The plaintiffs are entitled to -an order directing an account, and to have the action disposed of according to law. Error.", "type": "majority", "author": "Merrimon, C. J." } ], "attorneys": [ "Mr. Q. 8. Ferguson, for plaintiffs.", "Messrs. K. Elias and Theo. F. Davidson, for defendant." ], "corrections": "", "head_matter": "D. L. and J. T. LOVE. Ex\u2019rs of JOHN LOVE v. JOHN INGRAM, Ex\u2019r of DILLARD LOVE.\nAdministration \u2014 Statute of Limitations \u2014 Pleading.\n1. To enable the personal representative of a deceased person to avail himself of the limitations provided in I'he Code, \u00a7153 (2), he must allege in his plea, and prove upon the trial, that he made the advertisement, or gave the personal notice to the creditors, as prescribed in the statute.\n2. The mere lapse of time \u2014 seven years \u2014 does not create the bar; it must be coupled with the advertisement, or personal notice, and when these have been made, the statute will begin to run from the date of the qualification of the executor or administrator.\nThis is a civil action, in the nature of a creditor\u2019s bill, tried by McRae, J., at Spring Term, 1888, of Macon Superior Court.\nIt was agreed that the Judge might try the issue of the statute of limitations, it being the only issue of fact for a jury arising upon the pleadings.\nIt appears that Dillard Love died in July of 1872. leaving a Iasi, will and testament, which was proven, and the defendant qualified as executor thereof.\nThe plaintiffs obtained judgment against the defendant, as such executor, upon a debt due from his testator in his life-time, in the Superior Court of the county of Haywood; for $362.39, on the 29th day of May, 1876.\nThe present action was begun on the 8th day of June, 1883, by the plaintiffs, in behalf of themselves and all other creditors of the testator named, to compel the defendant, as such executor, to an account of his administration, and to pay the plaintiffs and all other creditors of his testator what may be payable to them, respectively, as allowed by the statute (The Code, \u00a7 1448).\nThe defendant, in his answer, denied most of the material allegations of the complaint, pleaded fully administered, no assets, and, particularly, for the present purpose, \u201cthat the plaintiffs ought not now to he allowed to prosecute this action, because it was not commenced within seven years after the appointment and qualification of defendant as executor of said Dillard Love, nor was it commenced within seven years after the pretended rendition of the. judgment now alleged to be due, and the plaintiff\u2019s cause of action is barred by the statute of limitations in such case made and provided.\u201d\nIt is stated in the case settled on appeal that \u201cthe only question presented to the Court wTas, whether this action is barred by the statute of limitations; and it appearing that this action was brought op the 8th day of June, 1883, upon a judgment taken against the defendant as executor of Dillard Love on the 29th of May, 1876, in favor of J. R. .Love and T. J. Love, executors of J. B. Love, deceased, and that the executors of J. B. Love qualified as such more than seven years before the beginning of this action, and the Court, being of the opinion that this action is barred by the statute of limitations, gave judgment for the defendant.\u201d\nPlaintiffs appealed.\nMr. Q. 8. Ferguson, for plaintiffs.\nMessrs. K. Elias and Theo. F. Davidson, for defendant." }, "file_name": "0600-01", "first_page_order": 632, "last_page_order": 634 }