Warren County NcArchives Court.....John Brodie, Robert Jones V. 1819
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File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 10, 2009, 12:04 am

Source: Nc Reports
Written: 1819

Robert H. Jones, administrator of Augustine Bayners, deceased, v. John Brodie, 
administrator, with the will annexed of Alexander Brodie, deceased

From Warren

November Term 1819

Under Laws 1715, ch. 48, requiring "the creditors of any person deceased to 
make their claim within seven years after the death of such debtor, otherwise 
such creditor shall be forever barred," two circumstances must concur to put 
the bar in operation, to-wit: the death of the debtor, and the simultaneous 
existence of a creditor.

If, therefore, the creditor die before the debtor, and no administration be 
taken out on his estate in the life time of the debtor, but is taken out 
afterwards, and suit is brought within due time, although it be more than 
seven years after the death of the debtor, the act of 1715 does not bar the 
claim.

When the statute of limitations begins to run, nothing will stop its 
operation; and, therefore, if a debtor die in the life time of his creditor, 
whose cause of action has accrued, the act of 1715 will attach upon the claim 
of the creditor, although no administration be taken out on the debtor's 
estate for more than seven years.

In reporting M'Lellan v. Hill, 1 N. C. 595, the fact of Hill's death before 
that of M'Lellan was omitted.

This was an action of debt, to which the Defendant, among other pleas, pleaded 
the act of 1715, ch. 48. To this plea the Plaintiff replied, "that Augustine 
Bayners, his intestate, died before the death of Alexander Brodie, the 
Defendant's testator, and that this suit was brought within less than seven 
years after letters of administration were granted on the estate of said 
Bayners." The Defendant rejoined, "that more than seven years had elapsed from 
the granting of letters of administration, with the will annexed, on the 
estate of Alexander Brodie, before the bringing of this suit; that John 
Brodie, the administrator, had delivered over to one of the legatees and 
distributees, his legacy and distributive portion of the said Alexander 
Brodie's estate; that he, the said John, was entitled to a legacy and another 
distributive share of said estate, as legatee and one of the next of kin; and 
that the other legatees and distributees had commenced suit, which was then 
pending, against him the said John, for the residue of the estate, which suit 
was brought before the commencement of this suit by the Plaintiff."  The case 
was sent to this Court.

Taylor, Chief Justice: The only fact agreed by the pleadings, out of which the 
question of law now to be decided, arises, is that the Plaintiff's intestate 
died before the testator of the Defendant, and that within seven years after 
administration was granted to the Plaintiff, this suit was brought. The 
Defendant pleads in bar to the recovery, the act of 1715, ch. 48, the words of 
which are, "That creditors of any person deceased shall make their claim 
within seven years after the death of such debtor, otherwise such creditor 
shall be forever barred."

By the common act of limitation, the bar begins when the cause of action 
accrues; and if the creditor be then living, the statute continues to run, 
although he should afterwards die intestate, and no administration be taken 
out upon his effects until more than three years thereafter. In other words, 
the administrator will not, in such case, be allowed three years from the time 
administration is granted, but the bar will be computed from the cause of 
action commencing. On the other hand, if money belonging to an intestate's 
estate be received by the Defendant before administration is taken out to the 
creditor, the administrator will be allowed three years from the time he 
administers; because, when the cause of action did accrue, there was no person 
who could bring suit.

These principles, after much uncertainty and confusion in the case, and 
particularly in abridging them for the elementary books, were at length ably 
expounded and finally titled, in Hickman v. Walker, Willes, 29; Smith v. Hill. 
1 Wills, 134. By the words of the act relied upon in this case, two 
circumstances must concur to put the bar in operation, to-wit, the death of 
the debtor and the simultaneous existent of a creditor. When creditors are 
required to make claim within seven years, the existence of creditors is 
presupposed at the moment from which the bar begins; and the construction is 
necessarily excluded, which shall take away the claims of those who shall 
become creditors after that period. To all statutes of limitation, the 
principle has been hitherto applied, that when they begin to run, nothing will 
stop their operation, and accordingly, if the intestate of the Plaintiff had 
been alive, when the Defendant's testator died, the act of 1715 would have 
attached upon his claim, although no administration had been taken out by the 
plaintiff, for more than seven years afterwards. That was the case of M'Lellan 
v. Hill, 1 N. C. 595, although this circumstance does not appear in the 
report. But I have examined the record, and ascertained the fact to be, that 
Hill died more than a year before M'Lellan. That case is, therefore, 
reconcilable with this; for the act began to run against M'Lellan, then "a 
creditor at the time of the death of the debtor." In this case, there was no 
creditor when the Defendant's testator died, nor was any person authorized to 
make claim, until the Plaintiff administered; and he having made claim within 
the time limited by the act, is not affected by the bar. 

The opinion of the Court is, that the plea of the act of 1715, should be 
overruled.


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