Opinion
(August Term, 1861.)
Wherever a deceased person has left a will and omitted to appoint an executor, or the person appointed has refused to qualify, the court of ordinary has a discretionary power to appoint any proper person administrator with the will annexed.
PETITION to revoke letters of administration, heard before Dick, J., at Spring Term, 1861, of RUTHERFORD.
Logan for plaintiffs.
Gaither for defendant.
At November Term, 1859, of Rutherford County court, the will (404) of Martha Haye was duly proved, and the executor therein named having renounced, the defendant, Fielding Turner, was appointed administrator with the will annexed. In May following, the plaintiffs, George W. Suttle and his wife, Mary, petitioned the county court of Rutherford, stating the probate of the will and the appointment of defendant, and that the renunciation of the executor was irregular and void, praying that said Turner be removed and the persons appointed by the will be qualified, and in case they refuse to qualify that some proper person be appointed to the office of administrator with the will annexed. The petition sets out that the plaintiff Mary Suttle "is the only heir-at-law of Martha Haye, deceased, and thereby entitled to administer on her estate."
The answer of the defendant Turner insists that the renunciation of the executors was duly and formally entered and that the court cannot inquire into the validity of their renunciation unless they were made parties. On the hearing of this petition the county court revoked the letters of administration granted to the defendant, ordered a reprobate of the will, and at the instance of the plaintiffs appointed one Washburn administrator with the will annexed. The county court having refused the defendant an appeal, the case was brought up by certiorari to the Superior Court, and there the judgment of the county court was affirmed, the letters of administration granted to the defendant were revoked and a procedendo ordered by the county court, from which judgment the defendant appealed to this court.
This is a petition filed in the county court of Rutherford for the purpose of having letters of administration cum testamento annexo on the estate of Martha Haye, which had been previously granted to the defendant by that court, and thereupon that the executors (405) named in the will, or some of them, should qualify thereto, or in the event of their renunciation that letters of administration should be granted to the petitioners or to some discreet person. Among the allegations upon which the petition is sought to be sustained is the main one that when the letters of administration were granted to the defendant the executors had not legally renounced their right to the office conferred upon them by the will, and that therefore the grant was improvidently made and ought to be revoked. In the petition the feme petitioner is alleged to be "the only heir-at-law" of the testatrix, and on that ground the right of administration is claimed for her.
The answer of the defendant alleges that the renunciation of the persons named as executors was properly made and entered of record by the court before the letters of administration were granted to him, and he insists that his letters, even if they were erroneously granted, cannot be revoked except in a proceeding by the executors themselves for the purpose, or at least in one to which they shall be made parties.
We are clearly of opinion that this objection is fatal to the petition.
Assuming that by the term "the only heir-at-law" the feme petitioner meant to allege that she was the only next of kin of the testatrix, that does not give her any right to the administration cum testamento annexo. The right of any person to the grant of administration upon the estate of a decedent depends upon the statute on that subject, which applies only to the cases of persons dying intestate. Whenever the deceased has left a will, the courts of ordinary have a discretionary power, in the event of there being no executor named in the will, or if those nominated die or refuse to qualify, to appoint any proper person to administer with the will annexed. In the exercise of this discretion they usually appoint the residuary legatee or some other person interested in the estate, their object being thus to secure on behalf of a faithful administration of the office the interest of the appointee. In the present case the feme petitioner does not appear to have even this recommendation of (406) interest in her favor, for it is not stated in the petition that she took anything whatever under the will of the testatrix. The petitioners are therefore to be regarded as strangers, interfering in matters in which they have no concern, and as such they cannot be permitted to interpose in behalf of the executors, by a proceeding to which the latter are not parties and in which they cannot be heard.
The judgment of the Superior Court must be reversed and the petition dismissed with costs.
PER CURIAM. Reversed.
Overruled: Little v. Berry, 94 N.C. 436; Williams v. Neville, 108 N.C. 564; In re Meyers, 113 N.C. 549.