Lenoir County NcArchives Court.....Hollowell, Vs. Pope 1811-18 ************************************************ 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: Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 8, 2008, 1:12 pm Source: North Carolina Reports Written: 1811-18 July Term 1811 THOMAS HOLLOWELL v. JOHN POPE AND WILLIAM POPE, Devisees of JOHN POPE, DECEASED. From Lenoir. 1. Statute of Limitations. Whether the act of 1789, ch. 23, bars the demands of creditors against the heirs and devisees, as well as against executors and administrators. A, having given his bond to B for a certain sum, and therein bound his heirs, etc., devised his lands to C. B brought an action of debt against C, the devisee, who pleaded in bar the act of 1789, ch. 23, and that the executor had advertised agreeably to that act. The action was not brought within two years after the qualification of the executor: Held, that the plea shall not avail C; for (l) the words of the act do not provide any limitation to suits brought against heirs or devisees; nor (2) are heirs and devisees within its equity and spirit. 2. The act of 1715 was designed to protect the heir, and every part of the estate, from demands of creditors; and therefore fixes the death of the debtor as the period from which the time is to be computed, and does not require the demand to be made of the executor or administrator, but leaves the inquiry "from whom shall the demand be made?" to be determined by the nature of the debt itself. If by the nature of the contract the heir is liable, the demand may he made of him, or of the executor. If the heir be not liable, the demand must be made of the executor only. 3. The act of 1789 was designed to protect the executor or administrator from such demands as he alone is liable to in the first instance, or such as the creditor may elect to enforce against him; and therefore fixes the qualification of the executor or administrator as the period from which the time is to be computed. This was an action of debt against the devisees of John Pope, deceased, on a bond given by the said John Pope to the plaintiff, Thomas Hollowell. The jury found the following special verdict, to wit: "That the bond declared on is the act and deed of John Pope, the devisor of the defendants, and that they have lands by devise sufficient to discharge the same. That the executors of John Pope, deceased, duly advertised the death of their testator, according to the directions of the act of 1789, ch. 23, and the plaintiff, at the time the said bond was executed, and ever since, has been an inhabitant of this State; and that this suit was not instituted within two years from the qualification of the executors. But whether the plaintiff be barred from a recovery by the said act of 1789, the jury pray the advice of the court. If the said act is to be considered as extending to claims against heirs and devisees, they then find for the defendant; but if the act is to be confined only to suits against executors and administrators, they then find for the plaintiff, and that the bond was not paid at or after the day." Taylor, C. J. It is very clear that the words of the act of 1789, ch. 23, do not provide any time of limitation to suits brought against devisees, nor can the Court, after an attentive consideration of its equity and spirit, discern any satisfactory ground on which such a construction can be rested. The creditors are required to make demand, within the time limited, against the executor or administrator from whose qualification the period is computeda provision necessarily implying that the claims must be of that description which the representatives of the personal estate are, in the first instance, liable to pay. But where a creditor having a direct remedy, which he chooses to enforce against the heir or devisee, from a belief that the real fund is either more solvent or more accessible than the personal one, it is difficult to imagine a reason why he should be compelled to make a demand of the executor or administrator, or why it is necessary for him to take notice of the time of their qualification. The whole act relates either to the proving of wills and granting letters of administration or to the recovery of such debts as are to be paid out of the personal estate. It points to the convenience of that class of creditors and to the safety and protection of executors and administrators after a certain period, provided they perform specified duties intended to apprise creditors of the death of the testator or intestate and to secure the personal assets, so that they may be forthcoming to their demands. It is worthy of remark that at the very same session a law was passed which for the first time rendered devisees liable to the payment of debts. So that had the Legislature designed to extend the limitation to them and to heirs, they would probably have done so in express terms; and as the whole subject was brought under view, as well the alteration of the law on such a material point as the time of limitation prescribed by the act of 1715, the omission can scarcely be ascribed to inadvertence. The act of 1789 professes to supply the deficiency of the act of 1715, in which the limitation is expressed in terms essentially different. It fixes the death of the debtor as the period from which the time is to be computed; nor does it, like the act of 1789, require the demand to be made of the executor or administrator; thereby confining the operation of the law to such debts as they are liable to be sued for. From whom the demand is to be made must, under the act of 1715, be determined by the nature of the debt itself; it may be made of the heir, if he is liable by the nature of the contract; it may be made of the executor or administrator, if the creditor will not or cannot pursue the heir in the first instance. So that in this view of the subject there is no conflict between the two laws, which, being intended to promote different objects, may well stand together. The act of 1715 was designed to protect the heir and every part of the estate from demands of whatsoever kind or nature; the act of 1789 was intended to protect the executor and administrator from such demands as they alone are liable to in the first instance, or such as the creditor may elect to enforce against them. That there should be a diversity of opinion as to the repeal of the act of 1715, between this Court and the Supreme Court of the United States, we cannot but regret; and if authority were a proper arbiter on such a question, there is none to which we could submit with more pleasure, because we highly estimate the talents and integrity which adorn that bench. But the exposition and construction of the legislative acts of this State will be sought for and expected in this tribunal by the citizens of the State; and we are bound to give that judgment which the best exercise of our own understandings will enable us to pronounce. Let there be judgment for the plaintiff. Additional Comments: North Caroline Reports, Vol. 6, Cases Argued and Determined in the Supreme Court of North Carolina, Reported by A.D. Murphey, Annotated by Walter Clark. 1811 to 1813, Inclusive and at July Term, 1818. Reprinted by the State. E.M. Uzzell and Company, State printers and binders, 1910. 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