{ "id": 8651391, "name": "J. A. BURGWYN, Administrator d. b. n. of J. M. ROGERS, v. W. E. DANIEL, Administrator of J. M. GRANT", "name_abbreviation": "Burgwyn v. Daniel", "decision_date": "1894-09", "docket_number": "", "first_page": "115", "last_page": "120", "citations": [ { "type": "official", "cite": "115 N.C. 115" } ], "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": "107 N. C., 31", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272466 ], "opinion_index": 0, "case_paths": [ "/nc/107/0031-01" ] }, { "cite": "112 N. C., 505", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651363 ], "opinion_index": 0, "case_paths": [ "/nc/112/0505-01" ] }, { "cite": "109 N. C., 524", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650964 ], "opinion_index": 0, "case_paths": [ "/nc/109/0524-01" ] }, { "cite": "58 N. C., 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8688196 ], "opinion_index": 0, "case_paths": [ "/nc/58/0173-01" ] }, { "cite": "87 N. C., 445", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8694783 ], "opinion_index": 0, "case_paths": [ "/nc/87/0445-01" ] } ], "analysis": { "cardinality": 383, "char_count": 9592, "ocr_confidence": 0.558, "pagerank": { "raw": 4.89950402824256e-08, "percentile": 0.30868286143323415 }, "sha256": "81d2f4b03749ba88aec6dba208357d414ec106500fd6e36b01839bcbf3738050", "simhash": "1:00db9d5d0000bf3d", "word_count": 1670 }, "last_updated": "2023-07-14T20:29:52.252220+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "J. A. BURGWYN, Administrator d. b. n. of J. M. ROGERS, v. W. E. DANIEL, Administrator of J. M. GRANT." ], "opinions": [ { "text": "Clark, J.:\nThe account is entitled on its face an annual account; it is so styled by the Clerk in approving and filing it, and it is recorded by him in his \u201c Record of Accounts \u201d and not in the book entitled \u201c Final Settlements.\u201d The Court properly instructed the jury that it was not a final account, and that the six years statute of limitations did not apply. In Vaughan v. Hines, 87 N. C., 445, the account held to be a final account showed that all the debts and expenses of the estate had been paid, and that there was a net balance which had been found \u201c due the heirs \u201d at a date more than a year previous. The present account merely shows a balance struck and in the hands of the administrator for the exigencies of the estate. The Court also correctly told the jury that, there being no final account, the trust was not ended, and the statute did not begin to run till the resignation of the administrator. In Glenn v. Kimbrough, 58 N. C., 173, it was held that the lapse of thirty-four years did not bar an action by the administrator de bonis non against the representatives of the first administrator when there was no administrator de bonis non during that period. Whether the ten years limitation in section 158 of The Code now applies in such cases, it is not necessary to decide in this case, as that period has' not elapsed. The defendant cannot complain that the Judge held that ten years would have been a bar. The sureties would have been protected by the lapse of three years from the taking out of letters of administration de bonis non. Brawley v. Brawley, 109 N. C., 524. It may be noted that that case has been sometimes misunderstood. It does not change the construction placed upon section 164 of The Code, that an action must be brought by a representative of a creditor within one year after his death, and against the representative of a debtor in one year after taking out letters of administration, when it would otherwise have become barred. Benson v. Bennett, 112 N. C., 505; Coppersmith v. Wilson, 107 N. C., 31.\nBrawley v. Brawley held that the statute of limitations did not run to bar an action by an administrator de bonis non against the representative and bondsmen of a deceased administrator while there was no administrator de bonis non\u2014 no one in esse who could bring such action. This would not apply to an action brought by the creditor, or a distributee, or legatee, directly against the representative of the deceased executor, administrator or guardian and their sureties for breach of the bond. Of course, after the death of the first administrator, an action to establish a disputed debt could be brought only against the administrator de bonis non.\nAffirmed.", "type": "majority", "author": "Clark, J.:" } ], "attorneys": [ "Messrs. W. W. Peele & Son, for plaintiff.", "Messrs. W. IT. Day and R. B. Peebles, for defendants (appellants)." ], "corrections": "", "head_matter": "J. A. BURGWYN, Administrator d. b. n. of J. M. ROGERS, v. W. E. DANIEL, Administrator of J. M. GRANT.\nAdministration \u2014 Annual and Final Account \u2014 Statute of Limitations.\n1. An account filed by an administrator entitled \u201cAnnual Account\u201d on its face, and so styled by the Clerk in approving and filing it, and recorded in the \u201cRecord of Accounts,\u201d and not in the record of \u201cFinal Settlements,\u201d and, moreover, showing a balance struck and in the hands of the administrator for the exigencies of the estate, and not as due the distributees, is not a \u201c final account\u201d to which the six years statute of limitation is applicable.\n2. Where such an account is filed by a public administrator, the trust is not ended and the statute does not begin to run until his resignation and the appointment of an administrator de bonis non.\n3. In such case, the sureties on the bond of the first administrator will be protected by the lapse of three years from the taking out of letters of administration de bonis non.\nCivil action, tried before Whitaker, J., and a jury, at December Term, 1893, of Northampton Superior Court.\nThe complaint alleged the death, in the year 1879, of Joseph M. Rogers; the taking out of letters of administration on his estate by J. M. Grant (the intestate of the defendant Daniel), who was public administrator of Northampton County, and on whose bond as such the other defendants (or their intestates) were sureties; the resignation of the office of public administrator by the said Grant in November, 1887; the negligence of the said Grant in failing to collect assets of the estate, etc. The said Grant having died intestate m February, 1892, the defendant Daniel was appointed his administrator shortly thereafter. In April, 1892, the relator of the plaintiff took out letters of administration de bonis non on the estate of J. M. Rogers. The prayer is for an account, etc., and judgment against the defendant Daniel, as administrator of Grant, and the sureties on the said bond.\nThe answer denied the allegations of the complaint as to the negligence of Grant as administrator, etc., and averred that on the 4th day of March, 1884, Grant filed his final account as administrator of Rogers, which, as alleged, was audited and approved by the Clerk and duly recorded. The defendant also pleaded the statutes of limitation of ten, six and three years.\nThe material issues submitted, and the answers thereto, are as follows :\n\u201c 1. Is the plaintiff\u2019s first cause of action on the first bond mentioned in the complaint barred by the ten years statute of limitation? Answer \u2014 No.\n\u201c 2. Is the plaintiff\u2019s second cause of action on the first bond mentioned in the complaint barred by the ten years statute of limitation ? Answer \u2014 No.\n\u201c3. Is the plaintiff\u2019s first cause of action on the first bond mentioned in the complaint barred by the six years statute of limitation? Answer \u2014 No.\n\u201c4. Is the plaintiff\u2019s second cause of action on the first bond mentioned in the complaint barred by the six years statute of limitation ? Answer \u2014 No.\n\u201c5. Is the plaintiff\u2019s first cause of action on the first bond mentioned in the complaint barred by the three years statute of limitation as to the sureties on said bond ? Answer \u2014 No.\n\u201c 6. Is the plaintiff\u2019s second cause of action on the first bond mentioned in the complaint barred by the three years statute of limitation, as to the sureties on said bond? Answer \u2014 No.\u201d\nThe plaintiff introduced inventory of J. W. Grant as administrator of J. M. Rogers, returned July 22,1879, showing that personal property and choses in action belonging to the estate of said Rogers then went into the said Grant\u2019s hands as such administrator.\nIt was admitted that Grant resigned his office of public administrator on the 15th day of November, 1887, and that W. F. Grubbs was appointed in his stead but never took out letters of administration on the estate of J. M. Rogers; that Grant died Febuary 15, 1892; that this action commenced May 13,1892; that J. A. Burgwyn qualified as administrator de bonis non on the estate of J. M. Rogers on the 23d day of April, 1892. Defendants introduced account of James W. Grant as adminisstrator of J. M. Rogers, recorded in book marked on back \u201c Record of Accounts.\u201d\nJ. T. Flythe, the present Clerk, was examined by plaintiff, and stated that the annual accounts of administrators are filed in a book entitled \u201c Record of Accounts,\u201d and their final accounts are recorded in a book entitled \u201c Final Settlements.\u201d Witness stated he had examined his books marked \u201cRecord of Accounts \u201d and \u201c Final Settlements,\u201d and he could find no other account returned by James W. Grant as administrator of J. M. Rogers, except the one before mentioned marked \u201cExhibit A;\u201d that he had searched his office for final account of J. W. Grant as administrator of J. M. Rogers, and found none.\nPlaintiff testified for himself that Walter E. Daniel, administrator of J. W. Grant, turned over to him some notes belonging to the estate of J. M. Rogers.\nHis Honor charged the jury :\n\u201c 1. That the account marked \u2018A,\u2019 and before mentioned, was not a final account, and the six years bar of the statute of limitations had no application to this case, and that if the jury believed the evidence they should answer Issues 3 and 4 \u2018 No.\u2019 \u201d\nTo this instruction the defendants excepted.\n\u201c 2. That the statute of limitations did not begin to run in favor of any of the defendants as to the ten years bar until the resignation of J. W. Grant, public administrator, on the 15th day of November, 1887, and as ten years had not elapsed from that time to the commencement of this action the jury should, if they believed the evidence, answer the first and second issues \u2018 No.\u2019 \u201d\nTo this instruction the defendants excepted.\n\u201c 3. That the statute of limitations did not begin to run in favor of any of the defendants as to the three years bar until the resignation of said Grant as public administrator on the 15th day of November, 1887, and inasmuch as there was no administration on J. M. Rogers\u2019 estate from that time till the qualification of the plaintiff on the 23d of April, 1892, in passing on the three years bar the time from the said resignation of Grant as public administrator to the qualification of said Burgwyn should not be counted, and hence, if the jury believed the evidence they should answer \u2018 No \u2019 to the fifth and sixth issues,\u201d\nTo this instruction the defendants excepted.\nThe jury answered \u201cNo\u201d to all the issues.\nIn addition to the above exceptions appellants excepted to the ruling of the Court that the account put in evidence was not a final account so as to put the statute of limitations to running.\nThere was judgment directing a reference under The Code to state an account, etc., and defendants appealed.\nMessrs. W. W. Peele & Son, for plaintiff.\nMessrs. W. IT. Day and R. B. Peebles, for defendants (appellants)." }, "file_name": "0115-01", "first_page_order": 135, "last_page_order": 140 }