(after stating the facts). It must be assumed that the parties agreed that the Court should take the papers, and upon the pleadings, admissions and inspection of the “account” relied upon by the defendant as a bar to the action, give such judgment as the law allowed. It would savor of trifling with the Court, to agree that it should simply decide that the plaintiff was or was not entitled to the judgment demanded in the complaint, and then stop without giving an appropriate judgment.

The obvious effect of the agreement as it appears in the record was, that the Court should accept and act upon the material facts, as they appeared in the record, and give such judgment upon the whole case — the law and facts — as the law might allow. It *236 was not a case where the parties agreed to a “ trial by the Court ” —that is, to waive a trial by jury, and stipulate that the Court should find the issues of fact and law, as allowed by The Code, §§416, 417. Practically, the parties submitted to the Court for its judgment “ a case agreed,” and it must be so treated.

The defendant alleges as matter of defence, and as a bar to the action, that his testator, in his life time, fully administered the estate of the intestate of the plaintiff, and "filed his final account of his dealings with said estate in the Probate Court of Northampton county, on the first day of June, 1874, together with his vouchers,” and that this account was examined and approved by the Judge of Probate, and entered of record in that court,” &c.

The account thus filed and approved, was not a bar to this action, nor would it be to an action by the next of kin, or indeed, of any person to be affected by it. It was not conclusive as ,fo any person interested, whether it be governed by the law as it prevailed before or since the statute, (The Code, §1399), became operative. This statute simply makes the approval of such account by the Clerk of the Superior Court, acting in his capacity as probate officer, “prima facie evidence of its correctness.” It was an ex parte statement, and the statute only shifted the burden of proof as to what it contained, to those who might have occasion to question its correctness. Villines v. Norfleet, 2 Dev. Eq., 167 ; Heilig v. Foard, 64 N. C., 710 ; University v. Hughes, 90 N. C., 537 ; Temple v. Williams, 91 N. C., 82.

The Court properly held that the statute of limitation, invoked by the defendant, did not bar the action. The action is not brought upon the official bond as administrator of the testator of the defendant. It is brought to compel au account and settlement of the estate of the intestate of the plaintiff in his hands in his life-time. He was a trustee of an express trust, and the statute of limitation did not apply.

Nor could the defendant avail himself of the equitable defence of lapse of time. The demand for an account and settlement of *237 the estate was not, under the circumstances, a stale demand. The administration began in September, 1861. The lapse of time next thereafter, until the first day of January, 1870, must be excluded, as directed by the statute. (The Code, §137). The widow of the intestate of the plaintiff died in May, 1872, and there has been no administration as to her, and, therefore, no one who could sue for her distributive share of the estate. There were only two of the next of kin, a son and a daughter. The son died in March, 1874, and there was no administration as to him, until the 27th day of December, 1881. The daughter did not come of age until the 26th day of July, 1881, and she became covert before she came of age. The testator of the defendant died in 1881.

This action was begun on the 28th of December, 1881, the day next after the plaintiff qualified as administrator. So that less than two and a half years ran against the widow in her lifetime; less than four and a half years against the son while he lived, and none against the daughter. The time during which there was no one capable of suing should not be counted. Obviously, therefore, lapse of time should not be allowed to bar this action. Falls v. Torrance, 2 Hawks, 490; Falls v. Torrance, 4 Hawks, 412; Petty v. Harman, 1 Dev. Eq., 191; Ivey v. Rogers, Id. 58 ; Hodges v. Council, 86 N. C., 181.

We think that the judgment directing an account, and ordering a reference to that end, was well warranted by what appeared in the case as submitted to the Court. Granting that the account filed by the testator of the defendant, as administrator of the intestate of the plaintiff, was prima facie evidence of its correctness, the facts admitted,'and others stated in the answer, show very clearly that the estate was not fully administered, settled and distributed, as it should have been, and as the law required. In one part of the answer it is stated; that he “paid over the balance in his hands to the widow and children ” of his intestate —in another part it is stated, that on the “final accounting there was a balance ascertained to be due said estate of *238 $7,528.24, which belonged in equal parts to the widow and the two children named ; that this sum, “ arose from the sale of the Nix and Underwood tracts of land/’ that the heirs of his intestate were in possession of, and claimed this land, and the administrator ought to have credit on that account — in another part of the answer it is stated,' that on the final account, it appeared that the widow’s share of the balance was $1,206,84 — that this share due her was paid, but to whom paid is not slated. It is further stated that since the “final account,” he had collected from a source mentioned, about $1,000; “that many of the bonds and accounts were insolvent by reason of the war,” yvhat ones were solvent and what insolvent does not appear. The widow, as we have seen, died in 1872, the final account was filed in 1874 ; there was no administration on the estate of the widow. To whom was her distributive share paid ? It does not appear. The son died in 1874, and there was no administration on his estate until December, 1881. With whom was there a final settlement as to his distributive share? The daughter was an infant. To whom was her distributive share paid ? who was authorized to receive it? How was the $1,000, collected since the “final account,” distributed ? The answer states, “that out of said sum he has fully paid off and discharged the balance due the widow as aforesaid, and has fully settled with the children for their part of the same.” How and when ? What proper vouchers did and could he get ?

It thus appears from the defendant’s answer, apart from the allegations of the plaintiff, that the “final account” relied upon, and the vouchers that must have been in a large part the basis of it, were vague, and indefinite, questionable and unsatisfactory. It is strange that the testator of the defendant, as such administrator, did not in his life time, apply to the Court by a proper proceeding, and have so large an estate settled under the supervision of the Court. Such a settlement would have been a finality. That he did not, and the “final account” relied upon was ex parte, are facts suggestive that an account should be taken.

*239 It may be, that the account when taken, will show that the estate was duly administered; We do not mean to suggest otherwise — -what- we decide is, that from what appeared, the Court properly dirented an account to be taken, and ordered a reference for that purpose.

There is no error. To the end that further proceedings may be had in the action according to law, let this opinion be certified to the Superior Court. It is so ordered.

No error. Affirmed.