Opinion
December Term, 1827.
From Rutherford.
1. Between brothers, administration will be committed to the one most interested to execute it faithfully.
2. The county court has power to revoke letters of administration issued during the same term, and to grant them to another.
THE County Court of Rutherford on the first Monday of March Term, 1827, ordered that letters of administration upon the estate of Rebecca Flecher should issue to Lemuel Moore. The next day those letters were revoked, and administration committed to Joseph Moore. On an appeal to the Superior Court, it appeared that George Moore, the father of the present parties, died in 1817, leaving a will, of which he appointed his sons Lemuel and Joseph executors; by it he directed his estate to be equally divided between his four children, of whom Rebecca Flecher was one. Property of the testator came (353) to the hands both of Joseph and Lemuel, the former of whom had settled with the legatees, but the latter had refused to account for the assets which came to his hands, and a petition was pending against him, filed by Joseph, Rebecca, and James, the other child of George Moore. Rebecca Flecher had been dead two years; she left children, but no one had applied for letters of administration upon her estate.
Wilson for the appellant.
No counsel for the appellee.
His Honor, Judge Norwood, affirmed the judgment of the county court, and awarded a writ of procedendo, whereupon Lemuel Moore appealed to this Court.
Both the County and Superior Courts have appointed Joseph Moore the administrator of Rebecca Flecher, deceased; and in the absence of all evidence in the case, this Court would see no reason why he ought to be removed and another appointed. But from the evidence which accompanies this case abundant reason is shown why he ought not to be removed.
The rights of the next of kin of Rebecca Flecher are more likely to be legally adjusted where they are identified with similar rights claimed by Joseph Moore, both of which are to be examined and decided on in the petition now pending between him and Lemuel Moore.
The circumstance that Lemuel had been previously appointed at the same term is not of itself a sufficient objection to the appointment of Joseph. It admits of two answers: first, it does not appear that Joseph had previous notice of the intended application; second, all the days of the term are considered as one, and everything is in the power of the court during its continuance.
PER CURIAM. Judgment affirmed.
(354)