There is no express provision in the statute requiring the clerk to recognize the right 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.
Collins v. Turner, supra, held that letters of administration granted in a county not the place of decedent's (425) domicile are void, citing Hard. 216, and Toller 90, where it was held: "If administration be granted by an incompetent authority, as by a Bishop, when the intestate had not bona notabilia, or by an Archbishop, of effects in another province, it is void." In that case and Smith v. Munroe, 23 N.C. 345, the fact of nonresidence was admitted. Any party interested or affected by a void judgment may attack it collaterally, in a proper case, or by a direct proceeding to have it stricken from the record as a nullity.
After stating the case: The statute of this State (Revisal, sec. 5, subsec. 2) positively forbids letters of administration to be issued to a nonresident of the State, and it is to be inferred from this enactment, as well as from the course of decisions in this Court, that the policy of the law is well established to the effect that a nonresident administrator cannot sue in the courts of this State. Butts v. Price, 1 N.C. 201; Anon., 2 N.C. 355; Helme v. Sanders, 10 N.C. 563; Leak v. Gilchrist, 13 N.C. 73; Smith v. Munroe, 23 N.C. 345; Moorefield v. Harris, 126 N.C. 626; Scott v. Lumber Co., 144 N.C. 44. A nonresident who happens also to be an administrator appointed by a court in the State of his and his intestate's residence and domicile may sometimes maintain an action in his own name in another State — as, for instance, to recover property, possession of which he had acquired as administrator and which had afterwards been taken from him; but he sues, not as administrator, but in his individual capacity, upon his own right of possession. Leak v. Gilchrist, supra. There are, perhaps, other examples of a like kind.
— The surviving husband or wife has the right to, by power of attorney, waive their right to appointment as administrator of the estate in favor of another qualified person named therein, to the exclusion of all others not equally entitled to appointment, who may be appointed administrator. Rev. Stats., arts. 1914, 1916, 1917. The right of the surviving husband or wife to nominate a qualified person, by power of attorney, to be appointed administrator of the estate, is not discretionary with the court, but is a right given by law, which it is the duty, of the court to protect and enforce. Rev. Stats., arts. 1914-1917, 1922, 2026; In re Estate of Cotter, 54 Cal. 215; In re Stevenson Estate, 72 Cal. 164; In re Dorris Estate, 93 Cal. 611; Ritchie v. McAuslin, 1 Haywood (N.C.), 220; Smith v. Munroe, 23 N.C. 345; In re Stewart's Estate, 18 Mont. 595; In re Estate of Bedell, 97 Cal. 339; Strong v. Dignan, 207 Ill. 385; In re Craigie's Estate, 60 Pac. Rep. (Mont.), 495; Branch v. Rankin, 108 Ill. 444; Little v. Berry, 94 N.C. 433; Succession of Bulliard, 35 So. Rep. (La.), 508; McLean v. Roller, 13 Pac. Rep., 1123. The fact that the person entitled to nominate a person to act as administrator of an estate is not a resident of the State where the administration is pending does not deprive them of making such nomination.
CLARK, J. The administrator in Georgia who obtained a judgment against the defendant, also resident in that State, seeks to subject realty of the defendant lying in this State. The administrator appointed in Georgia can not sue in this State ( Butts v. Price, 1 N.C. 201; Anon., 2 N.C. 355; Leake v. Gilchrist, 13 N.C. 81; Smith v. Munroe, 23 N.C. 345; Sanders v. Jones, 43 N.C. 246; Stamps v. Moore, 47 N.C. 80; Grant v. Reese, 94 N.C. 720), but ancillary administration must be taken out here. 13 A. E. (2 Ed.), 921. The intestate had no property in this State, but when a certified copy of the Georgia judgment is sent here, that is sufficient bona notabilia to authorize administration here under The Code, section 1374 (3), Shields v. Insurance Co., 119 N.C. 380. The creditor, if he had lived, could have sued here upon the debt, and have procured service by attaching the property here of the debtor who is a nonresident of this State. The administrator is simply the personal representative of the intestate, and has the same right of action, and to attach property of a nonresident as the basis of jurisdiction which the intestate would have had if living.
1. The next of kin may appoint a person to take out letters of administration in their stead. Ritchie v. McAuslin, 2 N.C. 220; Smith v. Munroe, 23 N.C. 345; Wms. on Ex's, 283. 2.
But, as the Court thinks that could not be, on the ground that will be next mentioned, it is useless to direct the inquiry. The fourth objection is to the validity of the grant of administration to the plaintiff, which goes to the whole bill. Upon that, Laws of 1777 and 1789, Rev. St., Ch. 46, sec. 1, and Ch. 122, sec. 6, are decisive. They require will to be proved, and letters testamentary and letters of administration (220) to be granted in the court of the county where the testator or intestate resided at the time of his death. If done in any other court, in case the party deceased had a residence in this State, it is void. Collins v. Turner, 4 N.C. 541; Smith v. Munroe, 23 N.C. 345. Besides, it is a contradiction and absurdity, after the probate of a will in one court, that another court should pretend to grant a probate thereof to another person named therein an executor, or receive the renunciation of such person, and grant, to yet another, administration cum testamento annexo.
Be this, however, as it may, either new letters must be obtained in this State, in such a case, before an administrator or executor can sue in our courts or he must produce his letters so authenticated in another State; and either, according to Judge Henderson's opinion, will answer. The power of our county courts to grant letters testamentary or of administration where a person has died beyond the State, being domiciled there, is fully established by Smith v. Munroe, 23 N.C. 345, (272) and that the county where bona notabilia of the testator or intestate are found is the proper tribunal to grant them. This can fully answer the verbal objection as to the letters in the present case growing out of the language of our act concerning probates.
It is appellants' contention that, in the absence of a finding of residence or domicile, lack of jurisdiction appears on the face of the record and that the Iredell probate can be ignored or attacked collaterally. In support of this contention appellants cite Collins v. Turner, 4 N.C. 541; Smith v. Munroe, 23 N.C. 345; Johnson v. Corpenning, 39 N.C. 216; London v. R. R., 88 N.C. 584; Springer v. Shavender, 118 N.C. 33, 23 S.E. 976; Reynolds v. Cotton Mills, 177 N.C. 412, 99 S.E. 240; In re Estate of Cullinan, 259 N.C. 626, 131 S.E.2d 316. In Collins, Smith, Johnson, London, Reynolds, and Cullinan, the Supreme Court was considering appeals from direct, not collateral, attacks on probates; and, therefore, upon their facts, these cases do not support appellants' contention.