#### EUGENE IRVIN and R. S. MONTGOMERY, as Administrators With the Will Annexed of the Estate of H. C. HARRIS, Deceased, v. WILLIAM C. HARRIS et al.

(Filed 20 December, 1922.)

Limitation of Actions — Deceased Persons — Executors and Administrators —Creditors—Estates.

C. S., 412, extending the time within which an action that has survived may be brought against representatives of deceased persons to one year after the issuance of letters testamentary or of administration, provided the letters are issued within ten years of the death of such person, and that it is not necessary to bring an action upon a claim against the estate *548to prevent the bar which has been admitted by the personal representative, until after his final settlement, is an enabling statute, intending to enlarge to that extent the time within which the action may be brought, and not to suspend the operation of the statute, which continues to run. In this case the question of the custom of partners in making sealed and unsealed obligations is referred to the case of Supply Oo. v. Wmdley, 176 N. C., 18.

This is a petition to rebear tbe case reported in 182 N. 0., 653. From EoCKINGHAM.

J. I. Beales, J. M. Sharp, H. W. Cobb, Jr., Fentress & Jerome, and Manly, Iiendren & Womble for petitioners.

P. T. Stiers, W. B. Dalton, Thomas G. Iloyle, F. P. Hobgood, Jr., and Humphreys & Gwyrm contra.

Adams, J.

Tbe question presented for decision in tbe petition for a rebearing involves tbe construction of tbe following statute: “If a person entitled to bring an action dies before tbe expiration of tbe time limited for tbe commencement thereof, and tbe cause of action survives, an action may be commenced by bis representative after tbe expiration of that time, and witbin one year from bis death. If a person against whom an action may be brought dies before tbe expiration of tbe time limited for tbe commencement thereof, and tbe cause of action survives, an action may be commenced against bis personal representative after tbe expiration of that time, and witbin one year after tbe issuing of letters testamentary or of administration, provided tbe letters are issued witbin ten years of tbe death of such person. If tbe claim upon which tbe cause of action is based is filed with tbe personal representative witbin tbe time above specified, and admitted by him, it is not necessary to bring an action upon such claim to prevent tbe bar, but no action shall be brought against tbe personal representative upon such claim after bis final settlement.” C. S., 412.

On behalf of tbe creditors it is insisted that tbe legal effect of this provision is to suspend tbe statute of limitations as to their several claims during tbe period that intervened between the death of tbe debtor and tbe qualification of bis personal representative, and that such intervening period should not be considered in computing tbe statutory bar.

We cannot concur in this conclusion, although apparently it finds support in some of tbe decisions. “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. ... If a person against whom an action may be brought die before tbe expiration of tbe time limited for tbe commencement thereof, and tbe cause of action survive, an action may be commenced against bis personal representative after tbe expiration of that *549time and within one year after tbe issuing of letters testamentary or of administration.” Winslow v. Benton, 130 N. C., 58. The extension of one year after tbe issuing of letters testamentary or of administration is not a disabling, but an enabling statute, intended to enlarge to tbat extent tbe time within which tbe action may be brought.

This is tbe purport of tbe reported case, but tbe defendants contend tbat by tbe application of this principle certain claims, should be disallowed in addition to those excluded in tbe former opinion. While it is not our purpose to conclude any claimant in case of a possible error or mistake, if tbe dates and claims are correctly stated (as we understand them to be), in “Appendix No. 1” following tbe defendants’ brief filed with their petition, it would seem tbat all tbe claims therein set out are barred and should be disallowed, in addition to those excluded on tbe former appeal.

We have considered tbe argument submitted by tbe counsel for Mrs. Chandler (Lizzie Sellers, exception 2), concerning tbe alleged custom of Eobert Harris & Brother to issue both sealed and unsealed instruments, but we find nothing in tbe record to warrant us in bolding tbat tbe principles announced in Supply Co. v. Windley, 176 N. C., 18, and other similar cases, do not apply.

When tbe case on appeal was argued, tbe record was not sufficiently definite to enable us to determine whether certain claims were barred, and a writ of certiorari was issued to tbe clerk of tbe Superior Court of Eoekingbam County in order to obtain more definite information. Upon consideration of tbe record as it now appears, we think tbe petition should be allowed.

Petition to rehear allowed.