Opinion
(December Term, 1845.)
1. The county court has no right to appoint an administrator with the will annexed, when there is an executor, laboring under no disability, until the renunciation of the executor, and such renunciation must appear of record.
2. Such an appointment is not merely voidable; it is absolutely void.
APPEAL from MECKLENBURG Fall Term, 1845; Pearson, J.
Osborne and Boyden for plaintiff.
Alexander for defendant.
This case, which was an action of detinue for a negro named Moses, was as follows: A man by the name of Flinn died in 1840, having duly made and published in writing his last will and testament, in which one Williamson was appointed executor. At May Term, 1840, of Mecklenburg court of pleas and quarter sessions this was duly proved, and at October term of said court in the same year administration with the will annexed was granted to the plaintiff. The letters set forth the death of Flinn and his leaving a will. Immediately upon the death of Flinn, Williamson, the executor, took into his possession the stock and farming utensils of his testator, and sold them at public auction, before the term at which the will was proved. The letters of administration did not show that Williamson, the executor, ever had renounced his right (28) to execute the will, nor did the record of the county court, which is made a part of the case, so state. But parol evidence was offered by the plaintiff to show that he was at court during the session of October, at which the administration was granted, and that he did actually renounce his right, though it did not appear upon the record. This testimony was objected to by the defendant, but was received by the court, subject to the objection.
No more of the case is stated than is necessary to show the ground upon which the Supreme Court proceeds in its judgment. The defendant objected that the plaintiff could not maintain his action because his appointment as administrator with the will annexed was absolutely void. His Honor who tried the case was of opinion that the plaintiff's appointment as administrator with the will annexed, being a special administration, was not void, but voidable, and, until repealed by the proper authority, invested the plaintiff with all the rights and powers of such an administrator. The jury found a verdict for the plaintiff, and the defendant appealed.
In the opinion of this Court, the presiding judge erred in deciding that the letters of administration granted to the plaintiff are merely voidable; we consider them void. We so believe for the reason that while the facts remained as they were when the court acted, the latter had no legal power to grant any species of administration upon the estate of Flinn; the case was not within their jurisdiction. The executor to a will, laboring under no disability, alone has the power and authority to administer the assets of the testator. If he be a minor or a lunatic, or beyond the jurisdiction of the court, the latter may appoint a temporary administrator, but not a general one. The powers of the one are essentially different from those of the other, and (29) if the latter be granted in such a case the letters are void. In the language of the Court in Slade v. Washbourn, 25 N.C. 562, they are a nullity. There the letters were declared void because they were general and were granted during a contest on the probate of the will. In the case now before us the letters of administration recite the existence of the will of Flinn, and are silent as to whether it had been admitted to probate or not, nor do they show that there was no executor appointed in it, or, if there was or had been one, his death or renunciation. The law empowers the court to grant a general administration only in cases of intestacy, and provides that where a person shall die "having made a will, and the executor shall refuse to prove the same or qualify as such, administration shall be granted," etc., 1 Rev. Stat., ch. 46, sec. 2; and the letters upon their face must show the reason of their being granted. It appears from the case that there was an executor, and that he was still in existence at the time the plaintiff was appointed administrator with the will annexed. Although it is the duty of a person appointed to the executorship of a will to bring it forward to the proper tribunal for probate, he cannot be compelled to accept the office, but may renounce his right to qualify. This renunciation may be made by the executor in open court or by letter or other writing addressed to the court and proved to their satisfaction. In either case it must be made a matter of record, and the letters of administration, which are but a transcript of the record, must set it forth, as showing the power and authority of the court to grant them. In subsequent proceedings the letters constitute the only evidence of the fact; parol evidence cannot be received. 1 Will. Exrs., 153; Slade v. Washbourn, 23 N.C. 561; Stabbins v. Lathrop, 4 Pick., 23; Commonwealth v. Mather, 16 S. R., 416. If, therefore, the letters show that there is a will, and the existence of an (30) executor be unknown, or before his renunciation, the court cannot grant letters of administration with the will annexed. If they do, the letters are void and confer no authority or power upon the administrator. Abram v. Cunningham, 2 Lea., 182; Graysbrook v. Fox, Plow., 276; Mitchell v. Adams, 23 N.C. 302. His Honor received parol evidence, subject to the objection made, that Williamson had renounced. Of his error he evidently became aware, for he does not notice it in his opinion, but places his decision upon the ground that, though the court could not grant a general administration, they might a special one. If by special his Honor meant a limited one, it might be so. But the Court in this case does not grant a limited but a general administration, to administer the assets according to the disposition of them by the testator.
We are of opinion that the letters of administration with the will annexed, under the circumstances of this case, are null and void.
PER CURIAM. Venire de novo.
Cited: London v. R. R., 88 N.C. 588; Shober v. Wheeler, 144 N.C. 407.