Opinion
(December Term, 1833.)
The giving of a bond by an administrator is not a condition precedent to his appointment. Where it appeared from the records of the court, that A B was appointed administrator, and qualified as such, though a blank bond was signed by him and his securities, the acts of such administrator were held valid, until his letters were called in and revoked.
DETINUE for sundry slaves, tried at Spring Term, 1831, of HYDE, before Martin, J.
Devereux for the defendant.
W. C. Stanley for the plaintiff.
Pleas — general issue, and statute of limitations. (226)
The plaintiff claimed title to the slaves, as administrator de bonis non of one Jeremiah Gibbs.
The defendant set up title under a purchase from one Stephen Gibbs, who he alleged, had been previously appointed administrator of said Jeremiah. The evidence of his appointment was the following entry on the records of the Court of Pleas and Quarter Sessions of Hyde County: "November Sessions, 1816. It is ordered, that Stephen Gibbs be appointed administrator of the estate of Jeremiah Gibbs, on his entering into bond, in the sum of $4,000, with John C. Bonner and William Shelby, securities." It appeared that no bond had been given by Gibbs, but that he, with said Brown and Shelby, had signed a blank piece of paper endorsed with the figures $4,000, that this paper was presented to, and accepted by the Court, as the administration bond of said Gibbs, and he thereupon qualified as administrator. That said Gibbs returned an inventory, and sold some of the property as administrator. It is deemed unnecessary to mention the other points made in the case as they are not adverted to in the opinion of the Court.
A verdict was returned for the plaintiff, from the judgment rendered, whereon, the defendant appealed.
The question for the Court to decide, is, whether Stephen Gibbs was ever legally appointed administrator of Jeremiah Gibbs. The plaintiff contends that he was not, and that the sale and distribution of the slaves belonging to the estate of the intestate, by Stephen Gibbs, transfered no title to the defendant.
The case is imperfectly made up; it does not expressly state, that the records show, that Stephen Gibbs qualified as the administrator. We, however, take the fact to be, that the evidence of his qualification was made to appear by the records of the Court, and not by parol proof. The records then show an order made, appointing Stephen Gibbs (227) administrator, the acceptance of the paper offered as a bond, and his qualification. There was enough appearing on the record to authorize the clerk to issue letters of administration to Stephen Gibbs. The appointment was not void, but voidable; the letters of administration were subject to have been called in, and repealed at the instance of any person interested; but whilst the order made remained unrepealed, the administrator had power from a competent authority to sell the slaves. The observation of the Court, in Hoskins v. Miller, 13 N.C. 362, is not an authority for the plaintiff in this case. The Court there said, "if the order had been, that administration would be granted to Taylor, upon his giving bond, it would have been conditional and nugatory. The Court can make no such order, for they still would have to judge of the bond and administer the oath." In the present case, the Court took upon themselves to judge of the bond (certainly an erroneous judgment), and did administer the oath. There remained no condition, in the opinion of the County Court, uncomplied with. They erroneously conceived that a blank bond, signed and sealed by the parties, would be good if it was afterwards filled up by the clerk. Upon the whole, we think Stephen Gibbs was a rightful administrator, and that the plaintiff in this case, from the facts stated, ought not to recover. A new trial is therefore awarded. We regret this the less, because on a second trial it can be shown whether the acceptance of the paper as a bond, and the qualification of Stephen Gibbs appears on the record of the Court or not.
PER CURIAM. Judgment reversed.
Cited: Davis v. Lanier, 47 N.C. 310; Jones v. Gordon, 55 N.C. 354; Muse v. Hodges, 94 N.C. 60; Mobley v. Watts, 98 N.C. 286; Howerton v. Sexton, 104 N.C. 86.
(228)