Cumberland County NcArchives Court.....John Averitt, Wiley Nunnery Et Al V. 1892 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/nc/ncfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Connie Ardrey n/a December 22, 2011, 11:26 am Source: N C Reports Written: 1892 Wiley Nunnery et al v. John Averitt Statute of Presumptions - Limitations - Administrators' Accounts 1. In an action to surcharge and falsify and restate an account filed in 1865, the statute of presumptions, instead of the statute of limitations, is proper to be pleaded. 2. The running of this statute was suspended during the minority of plaintiffs unless represented by guardian. 3. Ten years seems to have been the limit prescribed by the statute of presumptions in such actions, and when this statute is pleaded it is incumbent upon the plaintiffs to show that their action was within the limit, and if not, to offer evidence in rebuttal of the presumption. 4. The relation of trustee and cestui que trust does not now exist between the plaintiffs and defendant, because the latter disavowed it by the filing of the final accounts. 5. The statute of limitations, by the Acts of 1893, chapter 113, will be applicable to all causes of action accrued before 1868 and brought after January 1, 1893. This was a Civil Action to surcharge and falsify an account, begun before the Clerk and heard before Boykin, J., upon the pleadings and the facts found by the Court, at the May Term, 1892, of Cumberland Superior Court. The Court found that John Averitt, administrator of Wiley Nunnery, filed his final account, supported by proper vouchers, in the office of the Clerk of the Court in 1885 or 1886. John C. Callahan was Clerk. The vouchers were left with the Clerk. The administration was taken out before the Clerk. None of Wiley Nunnery's children or heirs at law were present at the time of the filing the account, and no notice thereof was given them. One of his children was born after his death. The final account cannot be found on the records. There was a small balance due the administrator by the estate in said settlement. Wiley Nunnery died in April, 1865. His children were: Charlie, Martha Jane, Wiley, Charity and Dennis White. The last was born October 19, 1865. The other children died without issue. Martha Jane and Charity were more than twenty one years of age when they married. The writ issued January 6, 1889. The Court ordered that an account be stated between the defendant and each of the plaintiffs. The defendant appealed. N. W. Ray for plaintiffs J. W. Hinsdale for defendant NC Supreme Court Justice Clark, J. - It is found as a fact that the defendant administrator "filed his final account, supported by proper vouchers, in the office of the Clerk of the Court in 1865 or 1866, and by this return there was a small balance due the administrator by the estate." This is, therefore, in effect, an action to surcharge, falsify and restate the account. The defendant pleads the six years statute of limitations, and also the statute of presumptions. The cause of action accrued when the final account was filed, the running of the statute being suspended, as to those of the plaintiffs who were under age, until their majority, unless represented by a guardian. After January 1, 1893, the same statutes of limitations will be applicable in all actions begun after that day, to causes of action accruing before 1868, as are now applicable to causes of action accruing since, this will avoid much confusion now incident to the application of the statutes of limitations and presumptions. The provisions of The Code in reference to the statute of limitations leave much to be desired. Many cases are left unprovided for, and in other instances the statute is confusing and ambiguous. The construction placed by the Court upon some of its provisions are, hence, not altogether reconcilable. It is desirable that the law making power should enact, if possible, a simpler statute, and a more comprehensive one, which would leave less to discussion as to its purport. (see court case for judge's full findings) Per Curiam Error - Modified Additional Comments: In the NC Supreme Court September Term 1892 File at: http://files.usgwarchives.net/nc/cumberland/court/johnaver2161gwl.txt This file has been created by a form at http://www.genrecords.org/ncfiles/ File size: 4.5 Kb