Anderson v. Gooding

265 S.E.2d 201 (1980)

300 N.C. 170

Billy Ray ANDERSON v. E. L. GOODING, Executor of the Will of Elizabeth Gooding Hardy, J. W. Brewer, and Great American Insurance Company.

No. 63.

Supreme Court of North Carolina.

May 6, 1980.

*202 James, Hite, Cavendish & Blount by Marvin Blount, Jr., and Robert D. Rouse, III, Greenville, for plaintiff-appellant.

Johnson, Patterson, Dilthey & Clay by Robert M. Clay and Robert W. Sumner, Raleigh, White, Allen, Hooten, Hodges & *203 Hines, P.A., by John R. Hooten, Kinston, for defendants-appellees.

HUSKINS, Justice:

Plaintiff contends that the notice to creditors published by E. L. Gooding, Executor of Elizabeth Gooding Hardy, did not comply with G.S. 28A-14-1, gave inadequate notice to plaintiff and was therefore ineffective to start the running of the six months' Statute of Limitations contained in G.S. 28A-19-3(a). The Court of Appeals held to the contrary, and this constitutes plaintiff's first assignment of error before this Court.

G.S. 28A-14-1, in effect at the time in question, read in pertinent part as follows:

"Every personal representative and collector within 20 days after the granting of letters shall notify all persons . . having claims against the decedent to present the same to such personal representative or collector, on or before a day to be named in such notice, which day must be six months from the day of the first publication or posting of such notice." (Emphasis added.)

G.S. 28A-19-1, in effect at the time in question, provided in pertinent part that claims against a decedent's estate may be presented by delivering or mailing to the personal representative a written statement of the claim indicating its basis, the name and address of the claimant, and the amount claimed. Such claim is deemed presented when it is received by the personal representative.

G.S. 28A-19-3(a), in effect at the time in question, provided in pertinent part as follows:

"All claims . . . against a decedent's estate . . . founded on . . . tort, or other legal basis, which are not presented to the personal representative or collector . . . within six months after the day of the first publication or posting of the general notice to creditors as provided for in G.S. 28A-14-1 are forever barred against the estate, the personal representative, the collector, the heirs, and the devisees of the decedent."

The notice to creditors published by E. L. Gooding, Executor of Elizabeth Gooding Hardy, deceased, reads in its entirety as follows:

STATE OF NORTH CAROLINA LENOIR COUNTY IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION ADMINISTRATOR'S-EXECUTOR'S NOTICE Having qualified as Executor of the Estate of Elizabeth Gooding Hardy of Greene County, North Carolina, this is to notify all persons having claims against the estate of said Elizabeth Gooding Hardy to present them to the undersigned within 6 months from date of the publication of this notice or same will be pleaded in bar of their recovery. All persons indebted to said estate please make immediate payment. This the 27th day of April, 1977. ESTATE OF ELIZABETH GOODING HARDY E. L. Gooding, Executor P. O. Box 3169 Kinston, N. C. 28501 WHITE, ALLEN, HOOTEN & HINES, P.A. Attorney 4/27, 5/4, 11, 18

Was the notice as published sufficient to start the running of the six months' Statute of Limitations so as to bar plaintiff's claim which he filed with the Executor on 16 November 1977? For reasons which follow, we hold that it was not.

G.S. 28A-14-1 requires the notice to creditors to be published once a week for four consecutive weeks in a newspaper qualified to publish legal advertisements, notifying all persons having claims against the decedent to present them to the personal representative on or before "a day to be named in such notice, which day must be six months from the date of the first publication. . . of such notice." This means that the notice must name a day after which claims may no longer be presented for payment but will be forever *204 barred. And the day named in the notice must be at least six months from the date of the first publication of the notice. Fixing the last day on which claims may be presented for payment is a duty imposed upon the personal representative by the statute. Accordingly, the notice in question here should have stated that all persons having claims against the decedent must present them to the executor on or before 27 October 1977 or the claims will be forever barred thereafter. See G.S. 1-593 and Rule 6(a) of the Rules of Civil Procedure. See also Harris v. Latta, 298 N.C. 555, 259 S.E.2d 239 (1979), and cases therein cited, with respect to the general rule for computation of time.

In the case before us, the notice actually published was fatally defective in that it failed to name a day after which claims would be barred. Moreover, it failed to give notice that claims must be filed at least six months from the day of the first publication of the notice. Since the notice in question was published on 27 April, 4 May, 11 May and 18 May, a claimant could assume, with equal logic, that the six months' period commenced on 18 May 1977, the last publication date, rather than 27 April 1977, the first publication date. The fact that plaintiff's claim in this case was received by the Executor on 16 November 1977, a date within six months from the last publication, accentuates the importance of naming a day certain in the notice after which all claims will be barred.

When an administrator or executor pleads G.S. 28A-19-3(a) as a defense against claims presented against the estate, he must establish the fact that he did advertise as required by G.S. 28A-14-1. Failure of such proof causes failure of the defense made under G.S. 28A-19-3(a). Compare Gilliam v. Willey, 54 N.C. 128 (1853). In the instant case, the proofs do not sustain the defense and, as a result, the limiting statute is no bar to the suit. The time limitations for presentation of claims provided in G.S. 28A-19-3(a) will not aid an executor or administrator who fails to observe its requirements. Compare Love v. Ingram, 104 N.C. 600, 10 S.E. 77 (1889).

Morrisey v. Hill, 142 N.C. 355, 55 S.E. 193 (1906), is inapplicable in the factual context of this case. That case deals with the statutory limitation placed on the commencement of actions to recover claims which have already been duly presented to and rejected by the executor. See G.S. 28A-19-16.

For the reasons stated the decision of the Court of Appeals is reversed to the end that partial summary judgment entered by the trial court in favor of plaintiff may be reinstated. Plaintiff is entitled to have his action tried on the merits and disposed of according to law.

We find it unnecessary to reach or decide other questions raised on this appeal.

REVERSED AND REMANDED.