It averred that Benjamin Bailey died in 1811, having made his will, whereof he appointed the testator of the defendant and another executors; that the testator of the defendant alone proved the will in March, 1812, and took into his possession all the personal estate, and under a power conferred by the will sold a valuable plantation and received the purchase money; that the executor acted for many years as the guardian of those of the legatees who were infants; that he died in 1817, having made his will, which was proved by the defendant, whom he appointed executor.
The defendant pleaded "that the said Thomas Davis, this defendant's testator, died more than seven years before the filing of the plaintiff's *Page 241 bill, to wit, at, etc., in 1817; nor has the defendant, at any time since the death of his testator, promised or agreed to come to any account with the plaintiffs, or make any satisfaction, or pay any money for or on account of his aforesaid testator, and therefore this defendant doth plead the act of Assembly in that case made, in 1715, for the limitation of actions brought by creditors against any person deceased, and prays that he may have the benefit of the same, and pleads the same in bar of so much of the plaintiff's bill as calls for an account of, etc., and prays judgment," etc.
DANIEL, J., sustained the plea, and dismissed the bill, (417) whereupon the plaintiffs appealed. In the present case there is no question raised as to the right of property. The plaintiffs seek that which was their father's and which by will he bequeathed to them; and in the bill are included the fair claims of the widow, derived from the same source. Whether these claims are barred by the statute of limitations, and given to an executor, it is our province to consider.
By section 9 of the act of 1715 (Iredell's Rev., ch. 48), any remnant of an intestate's estate that remained in the hands of an administrator, unexhausted by creditors and not claimed by the next of kin, is directed, after seven years, to be paid to the church wardens and vestry for the use of the parish. By the act of 1784 (Rev., ch. 205) such balance in the hands of an administrator, when his administration shall be finished and no further demand shall be made by creditors, shall be deposited in the treasury, subject to the claim of creditors and the representatives of the deceased, without limitation of time. Suppose, however, that an administrator does not pay over such surplus to the treasury, as he ought to do. As the representatives of the deceased can have no claim against the treasury, it follows that such administrator will be liable after seven years, because if he had done his duty, the treasury would be liable without limitation of time; and the administrator should not become the owner of the property as a reward for his delinquency.
By the act of 109 (Rev., ch. 763) it is made the right of the (418) trustees of the University to receive, and the duty of executors and administrators to pay to them, all sums of money or other estate of whatever kind that shall have remained in their hands for seven years after their qualifications respectively, unrecovered by creditors, legatees, or next of kin of their testators or intestates. And the trustees are authorized to hold the same absolutely, unless a just claim shall be made *Page 242 for the same within ten years thereafter. If, in the present case, the defendant had added to his plea that he had delivered over to the trustees of the University the estate in question, the plaintiff might have applied for it to the trustees at any time within ten years. But to hold on upon it, against the just and equitable claims of the plaintiffs, when the executor cannot claim the semblance of a beneficial interest in it, is what the act of 1715 never contemplated. The decree, therefore, made in this case in the Superior Court must be reversed.
PER CURIAM. Reversed.
Cited: Brotten v. Bateman, 17 N.C. 118; McCraw v. Fleming, 40 N.C. 350;Cooper v. Cherry, 53 N.C. 330; McKeithan v. McGill, 83 N.C. 519;Little v. Duncan, 89 N.C. 419.