Limitation of Actions 11 — illegitimate children — timely notice of claim against father's estate — tolling of statute of limitations because of infancy N.C.G.S. 1-17, providing for the tolling of most limitations periods during a person's minority, applied to N.C.G.S. 29-19(b), providing that illegitimate children must give written notice of a claim upon the estate of their putative fathers within six months after the date of first publication or posting of the general notice to creditors; therefore, the notice of plaintiff children's claim which was filed more than six months after publication of the notice to creditors but within six months of the appointment of the guardian ad litem was timely.
Chief Judge HEDRICK dissenting.
This is a declaratory judgment action. Plaintiff is the administrator of the estate of Darryl Leon Jefferys, who died intestate on 14 September 1985. Defendant James W. Tolin, Jr. is the guardian ad litem for Tameka L. Lester and Darryl Devon Lester, both of whom are illegitimate children of Mr. Jefferys. Prior to his death, Mr. Jefferys executed and filed with the district court an acknowledgment of paternity for both Tameka and Darryl.
Beginning on 23 September 1985, plaintiff administrator published a general notice to creditors in a newspaper of general circulation in Person County, stating that all claims against the estate should be served on the administrator by 24 March 1986. Neither of the children nor their mother filed notice of a claim against the estate. On 9 January 1987, Attorney James Tolin was appointed as the children's guardian ad litem. On 1 July 1987, he served plaintiff with notice that the minor children, Tameka and Darryl, were claiming an interest in the estate.
As administrator, plaintiff filed this declaratory judgment action on 13 January 1987 seeking a determination of Mr. Jefferys' rightful heirs. The trial court concluded that the children met the requirements of G.S. 29-19(b)(2) and were therefore entitled to take property from their father's estate. Plaintiff appeals.
EAGLES, Judge.
G.S. 29-19(b) provides that, for purposes of intestate succession, an illegitimate child may take by, through, and from the estate of:
(1) Any person who has been finally adjudged to be the father of such child pursuant to the provisions of G.S. 49-1 through 49-9 or the provisions of G.S. 49-14 through 49-16;
(2) Any person who has acknowledged himself during his own lifetime and the child's lifetime to be the father of such child in a written instrument executed or acknowledged before a certifying officer named in G.S. 52-10(b) and filed during his own lifetime and the child's lifetime in the office of the clerk of superior court of the county where either he or the child resides.
Notwithstanding the above provisions, no person shall be entitled to take hereunder unless he has given written notice of the basis of his claim to the personal representative of the putative father within six months after the date of the first publication or posting of the general notice to creditors.
G.S. 29-19(b). The parties do not dispute that Tameka and Darryl Lester qualify under G.S. 29-19(b)(2) and, if timely notice had been given, would take from their father's estate. It is also not disputed that the notice of their claim was filed more than six months after publication of the notice to creditors but within six months of the appointment of the guardian ad litem. G.S. 1-17 provides for the tolling of most limitations periods during a person's minority. Where a guardian ad litem is appointed for a minor, the limitation period begins to run from the time of the appointment. Teele v. Kerr, 261 N.C. 148, 134 S.E.2d 126 (1964). Here, the guardian gave notice of the children's claim within six months after his appointment. Therefore, the dispositive issue is whether G.S. 1-17 applies to toll the six month period in G.S. 29-19(b). We hold that it does.
The applicability of G.S. 1-17 is not limited to the statutes of limitation found in Chapter 1 of the North Carolina General Statutes. In Whitted v. Wade, 247 N.C. 81, 100 S.E.2d 263 (1957) the Court applied G.S. 1-17 to the six month period in which a widow is required to give notice of her dissent from her husband's will. The Court held that since the six month period was a statute of limitations, G.S. 1-17 was applicable. Similarly here, we construe the six month limitation period in G.S. 29-19(b) as a statute of limitation which is subject to being tolled under the provisions of G.S. 1-17. G.S. 29-19 confers upon illegitimate children the same rights enjoyed by legitimate children under our laws of intestate succession once there is proper adjudication or acknowledgment of paternity. Notification of the personal representative within six months of published notice to creditors does not establish or define the illegitimate child's right but merely sets a time limitation for an illegitimate child to seek its enforcement. See generally Bolick v. American Barmag Corp., 306 N.C. 364, 293 S.E.2d 415 (1982). Accordingly, we hold that the trial court correctly declared that Tameka and Darryl Lester were the rightful heirs of their father's estate.
Affirmed.
Judge PHILLIPS concurs.
Chief Judge HEDRICK dissents.
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