#### WINSLOW v. BENTON.

(Filed March 4, 1902.)

1. LIMITATIONS OP ACTIONS — Action Toy Administrator — The Code, Sec. 16í.

When a person entitled to bring an action dies before the expiration of the term limited for the commencement thereof, and the cause of action survives, his personal representatives may commence an action after the expiration of that time and within one year from his death.

2. LIMITATIONS OP ACTIONS — Action Against Personal Representatives — The Code, Sec. Wf.

If a person against whom an action may be brought die 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.

ActioN by Jordan Winslow, administrator, against Cbas. E. Benton and others, heard by Judge George II. Brown, at September Term, 1901, of the Superior Court of Perqut-MANS County. Prom a judgment for the defendants, the plaintiff appealed.

E. F. Aydlett, for the plaintiff.

J. II. Bawyer, for the defendants.

Clark, J.

The Code, section 164, is explicit that where the “person entitled to bring an action die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced by his representatives after the expiration of that time and within one year from his death/' This is because the law *59does not encourage remissness on tbe part of tbe creditor. Coppersmith v. Wilson, 107 N. C., 31.

But tbe same section, 164, prescribes a different rule where tbe debtor dies — “If a person against ivhom an action may be brought, die before tbe expiration of the time limited for tbe commencement thereof, and tbe cause of action survive, an action may be commenced against bis personal representative after the expiration of that time, and within one year after the issuing of letters testamentary or of administration Dunlap v. Hendley, 92 N. C., 115; Coppersmith v. Wilson, supra; Benson v. Bennett, 112 N. C., 505.

Tbe general rule remains as formerly, that when tbe statute of limitations has once begun to run, nothing stops it, but Tbe Code does not stop when tbe cause of action is one which must be brought by or against a personal representative. And for evident reasons it makes this distinction, that where tbe action must be brought by a personal representative, the limitation (if it would otherwise expire) is extended one year from tbe death of the creditor, but if tbe action must be against tbe personal representative, the limitation (if it would otherwise expire) is extended one year from tbe issuing letters testamentary or of administration.

Tbe language of the statute is too explicit to admit of more than one construction. Here, though tbe debtor died in January, 1883, letters of administration were not taken out till September, 1899, and there being no one to sue till then, an action could have been brought on tbe notes (none of which were barred by tbe death of tbe debtor) within one yeár after “taking out of letters of administration.” If there bad been some one to sue as tbe debtor or bis personal representative, tbe claims would have been barred as to those creditors foi whom action was not brought within tbe time limited, extended as above stated; not to exceed one year from death of creditor.

*60 Copeland v. Collins, 122 N. C., 619, relied'on for a contrary view, has no application. There, the action was not begun till nearly three years after the administration was taken out.

The above-cited cases of Dunlap v. Hundley, 92 N. C., 115 (at page 118), Coppersmith v. Wilson, 107 N. C., 31, and Benson v. Bennett, 112 N. C., 505, as well as Mauney v. Holmes, 87 N. C., at page 432; Burgwyn v. Daniel, 115 N. C., at page 119 ; Person v. Montgomery, (Furches, J.), 120 N. C., at page 115, are directly in point in this case, but were not cited either by the Court or the dissenting opinion in Copeland v. Collins, supra. This shows that an entirely different proposition was before the Court.

For this error, a new trial must be granted, but as this is not an action by creditors, but a petition by the administrate! to sell land to make assets, no opinion is here expressed as to whether he should not be held liable to account for such rents and profits of the realty as he may have received and collected since his intestate’s death. As between him and the defendants, the heirs-at-law, certainly this is a proper subject of inquiry. Such receipts are certainly a discharge of his own claim for expenditures for burial expenses, as the Court below properly held.

Error.