Summary
In Spencer v. Cahoon, 18 N.C. 27, it was held that a grant of administration, upon giving bond in the sum of $4,000, with J. B. and W. S. as sureties, was a valid grant of administration, although it was not stated on the record that the administrator gave bond and was properly qualified.
Summary of this case from Rogers v. CherryOpinion
(December Term, 1834.)
An entry on the records of the County Court, "It is ordered that S. G. be appointed administrator of J. G., on his entering into bond in the sum of $4,000, with J. B. and W. S. securities," is a valid grant of administration, although it be not stated on the record that the administrator gave bond, and was properly qualified.
The want of such statement may render the grant defective, and authorise the County Court to annul it; but until that is done, the grant must be respected as valid by other Courts.
AFTER the new trial granted in this case, at December Term, 1833, (4 Dev. Rep. p. 226,) it was again tried at Hyde on the last Circuit before his honour Judge NORWOOD, when the following entry on the minutes of the Court of Pleas and Quarter Sessions of Hyde county, was offered in evidence on the part of the defendant, viz. "Court of Pleas and Quarter Session for Hyde County, November Sessions, A.D. 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 J. Bonner and William Selby, securities." Much parol evidence was admitted by the Court to show the nature of the bond offered by Stephen Gibbs, and his qualification as administrator; but it is unnecessary to state it, as the opinion of the Chief Justice is founded entirely upon the effect of the entry on the minutes of the County Court. In the Court below, his honour was of opinion, that Stephen Gibbs had been duly constituted the administrator of Jeremiah Gibbs; whereupon a verdict was rendered in favour of the defendant, and the plaintiff appealed.
W. C. Stanly for the plaintiff, referred to the cases of Hoskins v. Miller, 2 Dev. Rep. 360, and this case when formerly here, (4 Dev. Rep. 226); and argued that the fact of the acceptance of the administration bond by the Court, and also of the qualification of the administrator, must be entered of record; and that if such facts do not appear of record, they cannot be supplied by parol evidence, and the grant will, consequently, be of no effect, the grant being predicated upon the giving bond, and qualification as conditions precedent.
Badger, for the defendant.
— The parties having brought up this case again, with a statement, which exhibits distinctly the contents of the record of the County Court, professing to be a grant of administration to Stephen Gibbs, we are enabled to decide it upon its proper principles.
It seems to us that the parol evidence ought not to have been received; for the acts of a Court can be proved only by its records. That evidence is therefore laid aside.
The question rests upon the construction proper to be put upon the minutes of the Court. We are satisfied that it is to be taken as a present grant of administration. It is argued to the contrary upon the words "on his giving bond;" and it is supposed that the argument is supported by my observations in Hoskins v. Miller, 2. Dev. 360. What I said, is not, perhaps, as clear as it ought to have been; but it was certainly not intended to state the proposition supposed, and the contrary is rather to be inferred. The grant, then, was deemed an immediate one; and it was remarked, that an order, that administration would be granted to W. T. upon his giving bond, would be conditional and nugatory. But that was said upon the idea, that the order was in its terms plainly prospective, as is to be collected from the expression "would be granted." It still left the inquiry open, what effect is to be given to an order like this, whether it is to be deemed a memorial of what the Court had done, or was doing, or of what it then resolved, it would do in future. A conditional and incomplete administration, is inferred from the words "on his entering into bond." But the minute ought not to be so understood. Those words are but equivocal to the purpose for which they are relied on. They might be construed as conditional, if the subject, to which they relate, was a stipulation in a contract, that one person would do an act, on the other party's doing another act. But in connexion with this subject-matter, the contrary is strongly to be inferred. Such an order would be so absurd, that the intention to pass it, cannot be presumed, unless the terms will not admit of any other construction. It would be vain and idle, for it would not bind the Court, or any body else. The fair meaning, is, that "on his entering into bond," the appointment was then made; that the giving the bond at that time was the inducement to the order. It is the same as if the words has been "he is appointed on his motion;" or "it is ordered on his motion, that he be appointed," which no body could misunderstand. The minute is certainly very short and irregular; but it is sufficient to satisfy any person, that the Court did thereby intend to commit administration, and so to certify to their successors. It does not state that the oaths of office were taken, it is true; and for that reason, and because the bond turns out to be defective, the administration might probably be repealed as obtained irregularly and by surprise. But no other Court can declare it void; for it was granted by the competent Court, and must be respected until revoked, although committed without taking bond or administering the oaths, those being points, into which no other Court can collaterally inquire.
PER CURIAM. Judgment affirmed.