Jackson v. . Thomas

191 S.E. 327, 211 N.C. 634, 1937 N.C. LEXIS 165

Opinion

Stacy, C. J.

Plaintiff’s evidence tends to show a subrogated claim for funeral expenses, Ray v. Honeycutt, 119 N. C., 510, 26 S. E., 127, 60 C. J., 725, a legacy due plaintiff’s intestate, Redmond v. Burroughs, 63 N. C., 242, and undistributed assets of the estate. In re Estate of Bost, ante, 440; Caffey v. Osborne, 210 N. C., 252, 186 S. E., 364. This would seem to defeat the motion for nonsuit, as none of the statutes of limitations is a complete bar upon the facts presently appearing of record. Moreover, the plea of the statutes of limitations would seem to be bad, Turner v. Shuffler, 108 N. C., 642, 13 S. E., 243, except, perhaps, as it may relate to C. S., 101, which is not available as against undistributed assets other than costs. In re Estate of Bost, supra.

A demurrer to the evidence goes to plaintiff’s entire right to recover, and may not be sustained, if, in any aspect or to any extent a cause of action within the pleadings is made out. C. S., 567; Moseley v. R. R., 197 N. C., 628, 150 S. E., 184.

Reversed.