Opinion
September Term, 1893
Administration — Right of Husband to Administer on Wife's Estate — Transfer of Prior Right to Administration — Duty of Clerk.
1. A husband has a right to administer the estate of his deceased wife, whether she die intestate (The Code, sec. 1376) or leave a will without naming an executor (The Code, sec. 2166).
2. A husband having a prior right to administer may transfer that right to another by appointment or may cause another to be associated with him in the administration, and this right, and the power and duty of the clerk to make such appointments, are not affected by the filing and probating in common form of a writing purporting to be the will of the wife, for the duties and responsibilities of the administrators are not changed by the fact that a will has been or may be probated, which will guide them in their administration after the payment of debts, etc.; being subject to the orders of the clerk touching the administration, they must obey, and if guilty of misconduct, they may be removed.
3. Where a husband and chosen associate were appointed administrators of the estate of the deceased wife of the former, they should not have been ousted by the clerk for the reason that at the time the appointment was made a writing purporting to be a will was on record and an issue devisavit vel non was pending.
By consent, upon the appeal of the respondents, Morris Meyers and Charles A. Webb, administrators of Sarah Ellick Meyers, from the clerk of the Superior Court, his Honor Armfield, J., found the facts.
James H. Merrimon for legatees.
Charles A. Webb for appellants.
The court, being of opinion, upon this finding of facts and the record, that the action of the clerk of the Superior Court of (548) Buncombe County in issuing to the respondents the general letters of administration as in cases of intestacy was void for want of jurisdiction, affirmed the order of the clerk revoking such appointment, to which the respondents excepted and appealed.
A husband has a right to administer the estate of his deceased wife, both in the event of her death intestate (The Code, sec. 1376) and also in the event that she leaves a will, but names no one as executor. The Code, sec. 2166.
The script which has been propounded as the will of Mrs. Sarah Ellick Meyers does not appoint any one to execute it. Therefore, if it be found, upon the trial of the issue devisavit vel non, that it is the will, that cannot have the effect of depriving her husband of the right to administer the estate. Hence, while it is true that there is a contest pending, there is no controversy in regard to the right of administration. Nor can there be one. The statutory provisions are plain. Little v. Berry, 94 N.C. 433.
It has been decided by this Court that one who has the prior right to administration may transfer that right by appointment. Little v. Berry, supra.
If the husband could have lawfully transferred his right to administer his wife's estate to another, he may certainly cause another to be associated with him in the administration. If it was proper to appoint the husband, it was proper to appoint the husband and his chosen associate, Webb, to be coadministrator.
From what has been said, it follows that the husband's right to letters of administration, and the clerk's power and duty to (549) appoint him and his chosen associate to be coadministrator, were not at all affected by the filing and probating in common form of the script which purported to be the will of Mrs. Meyers, for, as has been noted, that instrument named no one to administer the estate under its provisions. Suttle v. Turner, 53 N.C. 403, is overruled in Little v. Berry, 94 N.C. 433. The duties and responsibilities of these administrators are not in any degree changed by the fact that a will has been or may be probated that will guide them in their distribution of the assets that remain after payment of debts and charges of administration. They must take notice of that. The clerk has power to issue orders touching the administration, and they must obey. If they are guilty of misconduct, they may be removed.
But they should not have been ousted by the clerk for the reasons set out in the petition upon which his order of removal was founded.
His Honor should have directed the clerk to revoke his order of removal. It is so ordered.
Error.
Cited: Boynton v. Heartt, 158 N.C. 491; In re Shufford, 164 N.C. 135.