Summary
In Wooten v. Wooten, 123 N.C. 219, 31 S.E. 491, speaking to this statute, the Court said: "This changed (the) rule of common law, which was that personalty of the wife did not go to the husband when he died without having reduced it to possession by administration.
Summary of this case from Wilson v. WilliamsOpinion
(Decided 15 November, 1898.)
Administrators.
If the husband shall die after his wife, without having administered, there is no authority to appoint an administrator upon her estate. The Code, sec. 1479.
CIVIL ACTION upon a note under seal, tried before Adams, J., at Spring Term, 1898, of Superior Court of GREENE County.
The note for $500 was executed by Simeon Wooten, defendant, payable to intestate of plaintiff. The defendant contested the right of plaintiff to bring this suit, on the ground that Julia Wooten died leaving her husband, William I Wooten, surviving, who died without having administered, and that his administrator was the proper person to sue. The defendant also alleged that W. I. Wooten died largely insolvent, and owed defendant some $20,000.
(220) Pending the action, and after answer filed, the defendant, Simeon Wooten, took out letters of administration upon the estate of W. I. Wooten and applied by petition to be made a party to the cause as such administrator. His Honor granted the petition, and being of opinion that under section 1479 of The Code, that the personal property of the intestate Julia Wooten goes to the administrator of her husband, to be by him administered according to law, and that the plaintiff is not entitled to administer upon her estate, adjudged that this action be dismissed at the costs of the plaintiff.
The plaintiff excepted and appealed.
George M. Lindsey for plaintiff (appellant).
Swift Galloway and J. B. Batchelor for defendant.
The Code, sec. 1479, provides: "If the husband shall die after his wife, but before administering, his executor or administrator or assignee shall receive the personal property of the said wife, as part of the estate of the husband, subject as aforesaid," i. e., to her debts. This changed rule of the common law, which was that the personalty of the wife did not go to the husband when he died without having reduced it to possession by administration. And further, in conformity to this charge, it devolves the right of administering upon the wife's estate upon the executor or administrator of the husband ex officio. The object was evidently to save the cost and expense of two administrations and two sets of commissions by making the cestui que trust (the husband's representative) ex officio the representative of the wife. If there was an executor or administrator of the husband, an appointment of an administrator of a wife, who had predeceased him, would (221) be a nullity because not authorized by law. If there is a creditor of the wife, when there is default in taking out letters of administration upon the husband's estate, his remedy is not (as here attempted) by taking out administration upon the wife's estate, but to apply for administration upon the husband's estate, and then, as the law provides, he "shall receive the wife's personalty" and apply it to her debts.
As in this case it seems there was no creditor of the wife (who died, indeed, eight years before her husband) the proceeding was probably taken by some creditor of the insolvent husband with the view of applying to his debts the property of the wife, which, having become his, was liable to such application. But, in any event, whether the plaintiff was creditor of the wife or of the husband, his remedy under this statute was to take out administration upon the husband's estate.
The court below properly held that there is no authority to appoint an administrator upon the estate of a wife who dies before her husband, and, such appointment being void, dismissed the action.
Affirmed.