These questions are determinative of this appeal: (1) Has the clerk of the Superior Court jurisdiction to appoint an administrator c. t. a., d. b. n., of an estate, before the executor, who has qualified upon the same estate and entered upon the duties of his office, shall have been removed by order of the clerk, or before letters testamentary issued to him shall have been revoked by order of the clerk? (2) If not, does the filing by the executor of a final report of the administration of the estate have the effect of removing him from office, if in fact the estate has not been fully settled? (3) If not, when, in the trial of an action instituted by a party, as administrator c. t. a., d. b. n., who has been appointed as such before there is an order removing the executor, it is made to so appear to the court, should the court ex mero motu, or upon motion of the defendant, dismiss the action without proceeding-further with the trial? The first and second questions are properly answered in the negative, and the third in the affirmative.
In this State it is provided by statute that the clerk of the Superior Courts of each county has jurisdiction within his county to take proofs of wills and to grant letters testamentary, letters of administration with will annexed and letters of administration' in cases of intestacy, C. S., 1 and 938; to revoke letters testamentary and of administration, C. S., 30, 31, 32, 42, 44, and 938, for reasons therein specified, and of application to remove an executor or administrator in a proper case.
Edwards v. Cobb,
The general rule is that, after an executor or administrator is appointed and qualified as such, his authority to represent the estate continues until the estate is fully settled, unless terminated by his death, or resignation, or by his removal in some mode prescribed by statute, or unless the letters be revoked in a manner provided by law.
It is also an established principle of law that to .warrant the appointment of an administrator
de bonis non,
or
de bonis non, cum testamento annexo,
the office of administrator or executor must be vacant. Yacancy is a jurisdictional fact, and an appointment of either an administrator
de bonis non,
or an administrator
de bonis non, cum testamento annexo,
when there is no such vacancy is absolutely void, and may be so declared, even in a collateral proceeding.
In the Bowman case, supra, the holdings o£ this Court is thus epitomized in the headnote: “Where letters of administration are issued to one person, who qualifies, the power of the clerk in that respect and as to that estate are exhausted, and the subsequent appointment of another person as administrator, before the first appointment is revoked, is void.” In the opinion it is said that the clerk “had no power to grant letters upon the estate to any other person under any conditions while the letters issued to Whitaker were unrevoked,” citing Hyman v. Gaskins, supra. To like effect is Springs v. Irwin, supra.
In this State it is provided by statute, O. S., 31, that “If, after any letters have been issued, it appears to the clerk, or if complaint is made to him on affidavit . . . that any person to whom they were issued . . . has been guilty of default or misconduct in the due execution of his office . . . the clerk shall issue an order requiring such person to show cause why the letters should not be revoked. On the return of such order, duly executed, if the objections are found valid, the letters issued to such person must be revoked and superseded, and his authority shall thereupon cease.”
The practice in such cases is well stated in
Edwards v. Cobb, supra.
There the Court said that in this and similar cases the proceeding is begun by an order made by the clerk to show cause, notice of which must be served on the party charged or proceeded against, who shall have the right to plead thereto, and, from adverse ruling of the clerk, to appeal to the Superior Court, and then to this Court. See, also,
In re Battle,
Ey the weight of authority the removal or discharge of an executor or administrator is not effected by the approval of his final account without a formal order of discharge. Annotations 8 A. L. R., 175, at p. 185. Indeed, in
Best v. Best,
In
Johnston v. Schwenck,
Ohio St.,
Applying these principles to the factual situation of the case in hand, when the clerk of the Superior Court of Pitt County granted letters testamentary to Herman McLawhorn under the will of Ira J. Erizzelle, deceased, his authority was exhausted, and he had no jurisdiction to issue letters of administration c. t. a., d. b. n., to Jack Edwards or to any other person until a vacancy had occurred by the death or resignation of McLawhorn or until he had been removed for cause by order after notice. Hence, the appointment of Jack Edwards as administrator c. t. a., d. b. n., of Ira J. Erizzelle, deceased, is absolutely void.
We now come to the third question.
Objection to the jurisdiction of a court over the subject matter of an act is fundamental and may be made at any time during the progress of the action.
Henderson County v. Smyth,
In
Burroughs v. McNeill,
To like effect in
Branch v. Houston,
It is appropriate to say that whether Herman McLawhorn as executor of Ira J. Erizzelle, deceased, has or has not fulfilled the duties of office is not before us. This is a question to be addressed to the clerk of Superior Court if, and when, application may be made for the removal of said executor. But, until there has been a removal in accordance with law, “the law could not tolerate such a condition of things as would ensue if the clerk could appoint subsequent administrators, leaving the letters of former ones unrevoked.” In re Bowman, supra.
For causes stated, the judgment below is
Reversed.