The opinion
Allen, J.
The evidence strongly supports the contention of the defendant that the estate of E. C. Carson has been fully administered, and that all of the assets coming to the hands of the former administrator were exhausted in the payment of debts.
It may also be maintained on the record, that if there was a surplus after the payment of debts, as J. H. Wilson was both administrator of the estate and guardian of the infant children, the law would transfer the surplus from the administrator to the guardian under the authority of
Ruffin v.
Harrison, 81 N. C., 208 , affirmed on petition to rehear, 86 N. C., 190 , in which event the right of action would not be in the plaintiff, but in the administrator of the ward, who would be barred under
Dunn v. Beaman,
126 N. C., 766 .
We will not, however, rest our decision on either of these grounds as the case was tried in the Superior Court on the pleas of the statute of limitations, lapse of time and abandonment, and the appeal presents for review the correctness of the rulings on these questions, waiving the objection that the rules of Court have not been complied with, in that
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the exception is to the whole charge, and not to a part of it specifically pointed out.
The plaintiff does not contend that her cause of action is not barred if the limitations in force since 1868 apply, but she insists that the limitations prior to that time control, and that under the statutes then in force no right of .action accrued to the distributee until the tender of a refunding bond, which has not been done.
This position, as to the statutes applicable, is sound under sections 136 and 137 of the Code of 1883, the first of these providing that as to causes .of action accruing before 24 August, 1868, “the statutes in force previous to that date shall be applicable,” and the second that the time between. 20 May, 1861, and 1 January, 1870, “shall not be counted so as to bar actions or suits,” but both of these statutes were repealed by chapter 113, Laws 1891, and are, as far. as this action is concerned, as if they never existed.
It has also been directly held in
Edwards v. Lemmond,
136 N. C., 330 , that the statutes of limitation in force since 1868 are not applicable to causes of action arising before that time by reason of the repealing act of 1891.
In the
Edwards case
the original administration was taken out in 1866, and the executrix, who qualified, lived until 1901. There was then administration on the estate of the testator and on the estate of the executrix, and the first administrator brought suit against the second. The executrix did not file a final account.
The plea of the statute of limitations was sustained, and the ground of the decision is stated as follows: “At the end of two years, the law makes the -demand and puts an end to the express trust, though no express demand is made by any party interested upon the executor or administrator. He is in default, and an action will lie at the end of the two years at the instance of any one entitled to have an account in settlement of the estate.
Walker, J.,
in
Self v. Shugard,
135 N. C., at bot. of p. 194. It is familiar learning that the statute begins to run whenever the party becomes liable to an action if the plaintiff is under no disability.
Eller v. Church,
121 N. C., 269 . There having been no action begun within ten years, during which actions could have been brought, this action is barred by the Code, sec. 158.
Hunt v. Wheeler,
116 N. C., 424 . In
Wyrick v. Wyrick,
106 N. C., 84 , this was intimated and was reaffirmed in
Kennedy v. Cromwell,
108 N. C., 1 .
Grant v. Hughes,
94 N. C., 231 , and
Bushee v. Surles,
77 N. C., 62 , relied on by the plaintiff, were both cases where the original administration began under the law prior to the Code, as is stated by
Davis, J.,
in
Woody v. Brooks,
102 N. C., 344. The same is true of
Phifer v. Berry,
110 N. C., 463 . At that time such actions were governed by the former law. The
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Code, sec. 136;
Brittain v. Dickson,
104 N. C., 547 . But section 136 has been repealed by chapter 113, Acts 1891, and the statute of lirnitations prescribed by the Code is applicable to this case, though original administration was taken out in 1866.”
The statute began to run against the mother of the plaintiff, who, as •distributee of E. C. Carson, had the right to maintain an action, and the •cause of action was barred before the appointment of the plaintiff.
No error.