Thompson v. . Nations

17 S.E. 432, 112 N.C. 508

• Court: Supreme Court of North Carolina
• Decided: February 5, 1893
• Status: Published

Opinion

Clark, J.:

The administration having been taken out 10th December, 1862, a cause of action accrued to plaintiffs two years thereafter. Rev. Code, ch. 46, sec. 24. The Code, §137, does not postpone the time when causes of action shall accrue, but merely extends the period of limitation or presumption after a cause of action lias accrued, by omitting from the count tlio time between 20th May, 1861, and January 1,1870. This cause of action haying accrued in 1864, the presumption from the lapse of time applies and not the statute of limitation. The Code, §136 ; Bushee v. Burles, 77 N. C., 62. “The lapse of time (under the law prior to C. C. P.) constitutes no bar to the demand of an account by the next of kin against the administrator, but it may raise a presumption (of settlement or abandon•ment) * * * when there has been an interval of twenty years after the time appointed for settlement with the next of kin.” Bird v. Graham, 36 N. C., 196; Salter v. Blount, 22 N. C., 218.

The account filed by the administrator 13th April, 1891, was after the presumption from tire lapse of twenty years from January 1, 1870, had arisen and could not rebut it as to these appellants who are the sureties on the administration bond. There being no conflicting evidence, it was the duty of the Court to declare that the presumption was not rebutted. Grant v. Burgwyn, 84 N. C., 560.

Per Gu'riaM. Error.