Opinion
(June Term, 1863.)
1. A widow under 21 years of age cannot be appointed an administratrix. But the court may appoint an administrator during her minority, and, on her arriving at full age grant her the administration. Or, it may give the office to her appointee.
2. On an appeal to the Superior court from a grant of administration, it is not proper in that court, on the reversal of the order below, itself to make the appointment, but to order a procedendo to the county court.
APPEAL from an order of the county court appointing an administrator, before Bailey, J., at Fall Term, 1860, of ONSLOW.
The plaintiff, as the widow of James G. Wallis, was appointed by the county court of Onslow administratrix. It appeared that at the time of this appointment she was only about 17 years old. The defendant, who is the mother of the intestate, opposed the motion in the court below, on the ground that the plaintiff was under age, and on the further (79) ground that she (defendant) was the greatest creditor of the intestate, and appealed from the judgment.
The Superior Court reversed the judgment below. A motion was then made to grant letters to the appointee of the plaintiff, which are allowed by his Honor, and the defendant appealed.
McRae for plaintiff.
Donnell and Humphrey for defendant.
We concur with his Honor in the opinion that the county court erred in granting letters of administration to Caroline Wallis, the widow of the intestate. As widow, she was entitled to the administration, but the court could not grant it to her until she arrived at the age of 21 years, for the law presumes that before that age she is not capable of discharging the duties of administratrix. She did not, however, on that account lose her right, and, in order to preserve it, the court might have granted letters of administration to some other person durante minoritate, so that when she arrived at full age the general administration could be granted to her. Or the court might have granted the administration to such person as she should appoint. Ritchie v. McAuslin, 2 N.C. 220; Pearce v. Castrix. 53 N.C. 73.
In the Superior Court his Honor decided correctly that the appointee was entitled to the administration; but he erred in granting the administration, instead of directing a procedendo to the county court. This was done in Pearce v. Castrix, supra, as we find by a reference to the record, although it is not set out by the reporter, and such has been the practice since the adoption of the Revised Statutes. The county court has a peculiar jurisdiction in the probate of wills and granting letters of administration. It is substituted for the court of ordinary in England. The original will is to be filed there; the returns are to made there by executors and administrators, and the settlement of estates is (80) to be made there.
We presume his Honor was misled by the case of Blount v. Moore, 18 N.C. 10. That case was decided under the act of 1777, Laws of North Carolina, ch. 115, sec. 58, which directs the Superior Court, in cases of appeal, to grant letters of administration. That provision is omitted in the Revised Statutes, and also in the Revised Code. See ch. 46, secs. 1, 2, 3; ch. 4, sec. 2; ch. 31, sec. 17, from which it is evident that the letters of administration are now to be granted by the county courts, and, in cases of appeal, after deciding who is entitled to administration, the Superior Court should order a procedendo. For the error in this respect, the judgment is
PER CURIAM. Reversed.
Cited: Millsaps v. McLean, post, 83; Hughes v. Pipkin, 61 N.C. 6; Little v. Berry, 94 N.C. 437; Garrison v. Cox, 95 N.C. 355; Williams v. Neville, 108 N.C. 561, 566; Boynton v. Heartt, 158 N.C. 495.