Appeal by plaintiffs from McLelland, Judge. Judgment entered 6 April 1981 in Superior Court, Alamance County. Heard in the Court of Appeals 11 February 1982.
Wells, Judges. Judges Martin (Robert M.) and Webb concur.
Although there may be a factual issue in this case as to whether defendant's testator died before or during the collision of his automobile, that issue is not determinative of this appeal. Plaintiffs contend their action is not barred by reason of their failure to file their claims against Dawson's estate within six months of the date of the first publication of defendant's notice to creditors, or, within six months after the date the claim arose. The applicable statute is G.S. 28A-19-3, as that statute was worded in 1977, as follows:
§ 28A-19-3. Limitations on presentation of claims. -- (a) All claims, except contingent claims based on any warranty made in connection with the conveyance of real estate, against a decedent's estate which arose before the death of the decedent, including claims of the United States and the State of North Carolina and subdivisions thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, secured or unsecured, founded on contract, tort, or other legal basis, which are not presented to the personal representative or collector pursuant to G.S. 28A-19-1 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.
(b) All claims against a decedent's estate which arise at or after the death of the decedent, including claims of the United States and the State of North Carolina and subdivisions thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, secured or unsecured, founded on contract, tort, or other legal basis are forever barred against the estate, the personal representative, the collector, the heirs, and the devisees of the decedent unless presented to the personal representative or collector as follows:
(2) Any claim other than a claim based on a contract with the personal representative or collector, within six months after the claim arises.
The opinion of our Supreme Court in In re Miles, 262 N.C. 647, 138 S.E.2d 487 (1964), is controlling here. The facts in Miles, supra, were as follows. Plaintiff Petitioner Grubb, administrator of the estate of Ronald Allen Sybrant, had a claim against the estate of Wilson Miles for an alleged wrongful death sustained in an automobile collision which occurred on 10 January 1962. On 2 February 1962, Eugenia Miles was appointed administratrix c.t.a. of the estate of Wilson Miles. On 11 February 1963, an order was entered by the Clerk approving the final account of Eugenia Miles and directing her discharge. An automobile liability insurance
policy was an asset of Miles' estate which may have been available for payment of Grubb's claim for the wrongful death of Sybrant. On 9 January 1964, Grubb instituted a civil action to recover damages for the wrongful death of Sybrant. On 6 March 1964, Grubb filed a petition before the Clerk to re-open Miles' estate. The trial court ordered that Miles' estate be re-opened. In affirming the trial court, the Supreme Court, referring to G.S. 28-113, the predecessor to G.S. 28A-19-3, held:
By the provisions of G.S. 28-113, if a claim is not presented in six months, the representative is discharged as to assets paid. Even if this statute applies to a claim for unliquidated damages, which we do not concede, it would only bar petitioner's claim for damages for wrongful death as to assets paid out by appellant, and he could still assert his demand against undistributed assets of the estate and without cost against the administratrix c.t.a. of the Miles estate. In re Estate of Bost, 211 N.C. 440, 190 S.E. 756. In our opinion, failure of petitioner to file a claim for unliquidated damages with appellant does not bar his action, where he is seeking to recover damages for an alleged wrongful death of his intestate, and to collect it out of the automobile liability insurance policy issued to Miles, deceased.
See also Carethers v. Blair, 53 N.C. App. 233, 280 S.E.2d 467 (1981).
Defendant relies on the decision of our Supreme Court in Anderson v. Gooding, 300 N.C. 170, 265 S.E.2d 201 (1980) in support of her argument that plaintiffs' claims are barred under G.S. 28A-19-3. We do not agree. In Anderson, ...