#### Z. F. FISHER, Administrator of S. BALLARD, v. W. H. BALLARD et al.

(Filed 10 December, 1913.)

Executors and Administrators — Interrupted Administration — Judgments — Proceedings to Make Assets — Limitations of Actions— Interpretation of Statutes.

Where a judgment has been obtained in 1893 against an administrator upon a debt due by deceased, the administrator dies in 1898 without further administration until 1911, when proceedings are commenced against the heirs at law to sell lands to-make assets to pay the judgment debt, there being no personal assets, a plea of the statute of limitations as a defense should be sustained under the express requirements of the Revisal 1905, sec. 367, that letters of administration shall issue “within ten years of the death of such person,” and the period of interrupted administration will not be counted. Smith v. Brown, 99 N. C., 386, cited and approved.

Appeal by defendant from Garter, J., at November Term, 1913, of MadisoN.

This is a proceeding to sell land for assets, in wbicli the following' judgment was rendered:

“This cause coming on for hearing before his Honor, Frank Carter, judge, and a jury, at the November Term, 1913, of the Superior Court of Madison County, the parties, by consent, agreed upon the following statement of facts, the same appearing from the allegations of the petition and the admissions in the answer:

“1. That Stanhope Ballard died intestate in the year 1892, leaving surviving him Lucinda Ballard, his widow, and the defendants as next of kin and heirs at law.

“2. That "on 5 December, 1892, Lucinda Ballard, widow of Stanhope Ballard, deceased, was duly appointed and qualified as administratrix of the said Stanhope Ballard, and entered upon the discharge of her duties.

“3. That on 18 March, 1893, Roberson Brothers obtained judgment before J. M. Oliver, a justice of the peace of Madison County, against Lucinda Ballard, administratrix of Stanhope *327Ballard, for tbe sum of $113.38, and tbe same was duly docketed in tbe office of tbe clerk of tbe Superior Court of Madison County on 10 April, 1893.

“4. Tbat Lucinda Ballard, administratrix of Stanbope Ballard, deceased, died intestate in tbe year 1898 without ever having made her final settlement.

“5. Tbat at tbe time of bis death tbe said Stanbope Ballard was seized in fee simple of certain lands in tbe county of Madison, set out and described in the petition in this cause.

“6. Tbat on 3 July, 1911, tbe plaintiff, Z. .Y. Fisher, was duly appointed administrator de bonis non of tbe estate of tbe said Stanbope Ballard, deceased, and at once qualified and entered upon tbe discharge of bis duties.

“7. Tbat on 11 July, 1911, tbe plaintiff instituted a special proceeding’ before tbe clerk of tbe Superior Court of Madison County to sell tbe real estate described in tbe petition and tbe amendment thereto, for tbe purpose of making assets to pay off tbe judgment of Roberson Brothers rendered on 18 March, 1893, it being agreed tbat there are no personal assets belonging to said estate.

“8. Tbat said judgment has never been paid, and is a valid claim against tbe estate of tbe said Stanbope Ballard, deceased, unless tbe same is barred by tbe statute of limitations, tbe defendant having pleaded tbe three, six, seven, and ten years statutes of limitations, no proceedings having been taken on said judgment except as hereinbefore recited.

“Upon tbe foregoing findings of fact tbe court is of tbe opinion tbat tbe defendants’ pleas of tbe statute of limitations cannot be sustained, and is further of tbe opinion tbat said judgment in favor of Roberson Brothers is a valid claim against tbe estate of tbe said Stanbope Ballard, deceased.

“It is, therefore, ordered, adjudged, and decreed tbat all interest of tbe said Stanbope Ballard, of which be died seized, in tbe lands set out and described in tbe petition in this cause, and in tbe amendment thereto, be sold in order to pay said debt due Roberson Brothers, except so much of said lands as may have been vested in tbe bands of innocent purchasers prior to tbe institution of this proceeding.

*328“It is further ordered and decreed that Z. Y. Fisher be and he is hereby appointed commissioner to sell the aforesaid interest of the said Stanhope Ballard in said lands at the courthouse door of Madison County, to the highest bidder at public auction for cash, after first giving thirty days notice at the courthouse door and in some newspaper published in Madison County, and report his proceedings in the premises to this court.

“It is further ordered and adjudged that the defendants pay the costs, to be taxed by the clerk.”

The defendants excepted and appealed.

0. B. MarsKburn and P. A. McElroy for plaintiff.

Martin, Rollins •& Wright for defendants.

AlleN, J.

On 18 March, 1893, Roberson Brothers obtained a judgment against Lucinda Ballard, administratrix of Stan-hope Ballard, for $113.38. About five'years thereafter, in 1898, the administratrix died.

There was no further administration upon the estate until 3 July, 1911, eighteen years after the rendition of the judgment, and eleven years after the death of the first administrator.

This proceeding was commenced on 11 July, 1911.

Is the right of action barred by the statute of limitations? Clearly so, unless the time elapsing between the death of the first administrator in 1898 and the appointment of the second in 1911 is eliminated, and the authorities are to the effect that prior to 1905 the time between the two administrations must be excluded from the computation under that part of section 367 of Revisal which reads as follows: “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 survive, 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.” Smith v. Brown, 99 N. C., 386; Brawley v. Brawley, 109 N. C., 524.

The letter of this statute does not cover the case of an administration interrupted by the death of the first administrator; *329but, as was said in. Smith v. Brown, supra,: “This clause uses language appropriate to actions against a debtor personally and not barred by tbe statute at. tbe time of bis death, and not verbally to a case where one representative dies, or is removed, and another succeeds to bis place and carries on tbe work of administration left unfinished; yet tbe analogy is so complete and tbe spirit, if not tbe letter, of tbe act, reasonably' interpreted, so closely applicable to tbe present facts, that we feel constrained to bring them under its provisions, so as to embrace them.”

It would seem, therefore, that prior to 1905 tbe statute was applicable to administration interrupted by tbe death of tbe first administrator, and that tbe time between tbe two administrations would not be counted; but an important change in tbe statute was made by tbe General Assembly of 1905 by adding thereto, “Provided, such letters are issued within ten years of tbe death of such person.”

Tbe effect of this proviso was considered in Matthews v. Peterson, 150 N. C., 132, and it was there held that a delay of ten years, in taking out letters of administration, was a bar to a proceeding to- sell land for assets with which to pay judgments.

Tbe facts in tbe Matthews case were: Tbe plaintiff’s intestate, Haywood J. Peterson, died 12 July, 1895. Tbe plaintiff took out letters of administration 25 September, 1905. Tbe proceeding was begun 23 March, 1906, to make assets to pay five judgments taken before a justice of tbe peace 13 November, 1888, and docketed in tbe Superior Court tbe same day. These judgments were presented to tbe administrator a few weeks after bis qualification, and were admitted by him to be valid claims against tbe estate. , No personal property of tbe estate came into tbe bands of tbe administrator, and tbe Court said on these facts: “Revisal, sec. 367, which suspends tbe running of. tbe statute upon tbe death of a 'debtor till one year after tbe issuing of letters to bis personal representative (Winslow v. Benton, 130 N. C., 58), contains this clause, inserted by tbe Eevisal commissioners: ‘Provided, such letters are issued within ten years after tbe death of such person.’ Tbe Eevisal was enacted 6 March, 1905, but to go into effect 1 August, 1905. *330 The plaintiff took out Ms letters thereafter on 23 September, 1905, which was more, than ten years after the death of the judgment debtor, the plaintiff’s intestate. . . . The claim is not meritorious. More than seventeen years had elapsed after judgments taken, with no effort to enforce collection, and more than ten years after they had ceased to be causa litis. Daniels v. Laughlin, 87 N. C., 433. As to. such stale claims, evidence of payment may well have been lost. The Revisal, sec. 367, was a wise provision. The plaintiff, nevertheless, waited more than a year after, its enactment and nearly eig'ht months after the future day set for its going into effect before beginning this proceeding. .Not having moved ‘in a' reasonable time’ after the passage of the act, he is justly barred.”

We are, therefore, of opinion that the facts presented come within the statute, and that under the construction placed upon the amendment of 1905, the action is barred.

Reversed.