94 N.C. 433 | N.C. | 1886
(434) This was a petition to the Clerk of the Superior Court of Burke County, by C. A. Little, to be appointed administrator debonis non, cum testamento annexo, of John Sudderth, deceased.
John Sudderth died on the ____ day of ______, 1865, leaving a last will and testament, in which he appointed Joseph Corpening, W. J. Sudderth, and — Sudderth executors thereof. All of the executors qualified, and took upon themselves the burden of executing the will, but each of them died intestate, and C. A. Little was appointed administrator of Joseph Corpening, and R. J. Halliburton administrator of W. J. Sudderth. The testator left three children surviving him, to-wit, W. S. Sudderth, John R. Sudderth, and A. E. Sudderth, who intermarried with R. D. Combs, of whom A. E. Combs alone survives. *375
This was a contest before the Clerk, between the different claimants, for the right to administer upon the estate of John Sudderth. There was a notice served on R. D. Combs and wife, the latter of whom was the next-of-kin of the said John Sudderth, to show cause why they should not be held to have renounced their right to administer on his estate, and why the petitioner C. A. Little, as the highest creditor, should not have the letters of administration issued to him. A. E. Combs and R. D. Combs appeared before the Clerk, and insisted that she, as next-of-kin, was entitled to the administration, and had the right to designate some suitable person to be appointed in her place, and accordingly did designate B. A. Berry, as a competent and suitable person to be appointed.
The Clerk, holding that the appointment of an administrator, under the circumstances of the case, was a matter within his discretion, appointed B. A. Berry, administrator de bonis non of John Sudderth,Cum testamento annexo, who gave bond as required by law. From the ruling of the Clerk, C. A. Little appealed to the Judge of the district, and the cause coming on to be heard before Avery, Judge, at Chambers, on the 17th day of July, 1885, and being heard upon argument of counsel for all parties to the proceeding, and the Court having by consent taken the papers in the case until the Fall Term, 1885, (435) of the Superior Court of Burke County; and the Court being of opinion, and holding, that the Clerk erred in appointing B. A. Berry administrator as aforesaid, after finding as a conclusion of law, that Anna E. Combs had the first right to administer, as the only surviving child of said John Sudderth, and assigning as a reason for said appointment, that R. D. Combs and wife had designated said B. A. Berry, as a suitable person to administer in their stead: It was therefore considered and adjudged that the judgment of the Clerk be reversed and vacated, and that the matter be remanded to the Clerk, to the end that he may proceed to appoint an administrator of the estate of said John Sudderth. From the judgment of the Court, B. A. Berry appealed to this Court.
The judgment of his Honor in the Court below, reversing and vacating the judgment of the Clerk, seems to have been founded upon that ground, that the Clerk granted letters of administration de bonis non, cum testamentoannexo, to B. A. Berry as the appointee of Combs and his wife. His Honor *376
concedes that Combs and his wife, as next-of-kin, were entitled to the letters, but that they had no right to designate the person who should be appointed in their stead, and it was error in the Clerk to grant the letters to Berry, on the ground it was a matter within his discretion. We are informed by the pleadings in the case, that John Sudderth died in 1865, but there is nothing in the case to show when his will was proved, or when his executors were qualified, and it is therefore uncertain whether the letters testamentary were granted to his executors before the 1st of July, 1869, or not — and hence we are unable to see whether the law applicable to granting of administration, in force (436) before that time, applies to this case. If the letters were granted prior to that time, then by reference to the case of Sutton v.Turner,
According to these provisions of The Code, R. D. Combs and his wife were clearly entitled to letters of administration d. b. n. c. t. a. on the estate of John Sudderth, as his next-of-kin, and, being so entitled, they had the right to decline the letters, and designate some suitable person to be appointed in their place and stead. In Wallis v. Wallis,
But take the case either way, whether the letters were granted before or after the first of July, 1869, we think, by reference to the statutes and the decisions cited, the Clerk had the right to appoint the person designated by the next-of-kin, in preference to the largest creditor, and it can make no difference whether he should have assigned, as a reason for his judgment, that it was a matter of discretion, since he exercised it in favor of the appointee of the next-of-kin.
There is error, and the judgment of the Superior Court is therefor reversed, and that of the Clerk affirmed. Let this be certified to the Superior Court of Burke County.
Error. Reversed.
Cited: Williams v. Neville,
(438)