of one belonging to a preferred class to renounce his right to qualify and at the same time nominate another for appointment in his stead, but ever since 1792 ( Ritchie v. McAuslin, 2 N.C. 220) the courts have so interpreted the statutes and rules of procedure as to give sanction to the right of nomination and substitution, and have sustained the right of the nominee of one preferentially entitled to the appointment, when such nominee is in other respects fit, suitable, and competent, and when the person nominating is himself competent by reason of residence, age, and capacity to act. This construction of the pertinent statutes has been uniformily applied by the courts and has become firmly embedded in the law of administration in North Carolina. Ritchie v. McAuslin, supra; Carthey v. Webb, 6 N.C. 268; Smith v. Munroe, 23 N.C. 345; Pearce v. Castrix, 53 N.C. 72; Wallis v. Wallis, 60 N.C. 78; Hughes v. Pipkin, 61 N.C. 4; Little v. Berry, 94 N.C. 433; Williams v. Neville, 108 N.C. 559; In re Meyers, 113 N.C. 545; Boynton v. Heartt, 158 N.C. 488; In re Jones, 177 N.C. 337; Croswell Executors and Administrators, p. 92; 4 Schouler on Wills, Executors, and Administrators, sec. 1647. These authorities sustain the right of the clerk to appoint the person designated by those preferentially entitled as against one of lesser degree of kinship, or of lower classification under the statute.
One of said children, Maud E. Cilley, has since died, leaving a husband and two children. The court properly held that this legacy was vested ( Guyther v. Taylor, (135) 38 N.C. 323; Green v. Green, 86 N.C. 546), and hence at her death, intestate, the payment should be made to her husband (Revisal, 4; In re Mayers, 113 N.C. 545; Neill v. Wilson, 146 N.C. 245); subject in his hands, of course, to the payment of the debts of his wife, if any. Bank v. Gilmer, 116 N.C. 701; Whitaker v. Hamilton, 126 N.C. 468. 3. The paper-writing signed by all the living children, agreeing that the allowance of $2,000 in the will should be increased to $3,500 annually, was properly held "insufficient in law to empower the executors to change the directions of the testator in section 2 of his will, in which he directed $2,000 a year to be paid her in lieu of her dower and distributive share."
There is no error and the judgment is affirmed. Cited: Hampton v. Wheeler, 99 N.C. 226; Ellington v. Ellington, 103 N.C. 58; McMillan v. Gambill, 106 N.C. 362; Ferguson v. Wright, 113 N.C. 545; Shannon v. Lamb, 126 N.C. 46; Thorpe v. Holcomb, ibid., 367; Allred v. Smith, 135 N.C. 452; Bullin v. Hancock, 138 N.C. 202; Lumber Co. v. Cedar Works, 168 N.C. 350; Alexander v. Cedar Works, 177 N.C. 142; Crews v. Crews, 192 N.C. 686.
No error. Affirmed. Cited: Hicks v. Bullock, 96 N.C. 171; Hampton v. Wheeler, 99 N.C. 226; Love v. McClure, ibid., 295; Orrender v. Call, 101 N.C. 403; Allen v. Sallinger, 103 N.C. 17; Ellington v. Ellington, ibid., 58; Allen v. Sallinger, 105 N.C. 342; McMillan v. Gambill, 106 N.C. 362; Gilchrist v. Middleton, 107 N.C. 681; Jeter v. Davis, 109 N.C. 460; Ross v. Hendrix, 110 N.C. 405; Ferguson v. Wright, 113 N.C. 545; Carson v. Carson, 122 N.C. 647; Roscoe v. Lumber Co., 124 N.C. 48; Shannon v. Lamb, 126 N.C. 46; Hardee v. Weatherington, 130 N.C. 92; Atwell v. Shook, 133 N.C. 393; Allred v. Smith, 135 N.C. 452; Bullin v. Hancock, 138 N.C. 202; Dobbins v. Dobbins, 141 N.C. 217; Lumber Co. v. Cedar Works, 168 N.C. 350; Roberts v. Dale, 171 N.C. 467; Bradford v. Bank, 182 N.C. 230.