In Re the Estate of Pitchi

Barnhill, J. Tbe orderly administration of tbe estates of decedents is a necessary incident to tbe devolution of property by inheritance or under testamentary devise. Such administration is a matter of public interest and is regulated by law. Under our statute jurisdiction is vested in tbe clerk of tbe Superior Court acting as probate judge. When so acting, bis court, in respect to probate matters, is a court of general jurisdiction. His jurisdiction is invoked by application or petition by some person entitled to qualify as administrator or executor, G.S. 28-6, in which tbe requisite jurisdictional facts, G.S. 28-1, are made to appear. Batchelor v. Overton, 14 S.E. 20; Holmes v. Wharton, 194 N.C. 470, 140 S.E. 93; Brooks v. Clement Co., 201 N.C. 768, 161 S.E. 403. While tbe administrator is required to give bond for tbe faithful performance of tbe trust reposed in him, G.S. 28-34, tbe authority of tbe probate judge to appoint does not rest on tbe bond. That is merely a question going to tbe manner of qualifying under tbe appointment. 21 A. J. 449, see. 126. “Tbe giving of the bond, though required, is not essential to tbe efficiency of tbe act of appointment itself.” Howerton v. Sexton, 104 N.C. 75; In re Wiltsey’s Will, 109 N.W. 776; Beresford v. Coal Co., 98 N.W. 902, 70 L.R.A. 256; Leatherwood v. Sullivan, 81 Ala. 458; 21 A.J. 449, sec. 126; 33 C.J.S. 988; 2 Amer. Law of Administration 836, sec. 253. When tbe appointment has been made and letters of administration have been issued, tbe letters are valid. “Tbe failure to give a bond or tbe *487 giving of an insufficient bond is only an irregularity, in no way affecting tbe validity of tbe appointment.” Batchelor v. Overton, supra; Hughes v. Hodges, 94 N.C. 56. Tbe irregularity makes tbe letters of administration voidable only — a condition wbicb may be cured by full compliance with tbe statute. In re Wiltsey’s Will, supra. Tbe conclusion tbat tbis is true is implicit in tbe uniform decisions in tbis and other jurisdictions to tbe effect tbat sucb letters once issued are not subject to collateral attack, Batchelor v. Overton, supra; Tyer v. Lumber Co., 188 N.C. 274, 124 S.E. 306; Brooks v. Clement Co., supra, for a void order or decree is coram non judice and may be attacked whenever and wherever it is asserted. Monroe v. Niven, 221 N.C. 362, 20 S.E. 2d 311. Of course tbe issuance of letters of administration without first requiring a good and sufficient bond is a serious irregularity. Whenever sucb inadvertence is called to tbe attention of tbe clerk be should promptly demand bond, in default of wbicb be should recall and revoke tbe letters of administration. In tbe meantime, bis official bond is liable for any devastavit occurring prior to tbe filing of a bond. Plemmons v. R. R., 140 N.C. 286. Here a bond with sufficient surety has been tendered to. and accepted and approved by tbe clerk. As tbe only asset of tbe estate is tbe claim for damages for wrongful death, tbe bond, for tbe time being, is sufficient in amount. Upon a recovery in tbe pending suit tbe clerk may and should require additional bond commensurate with tbe amount of recovery. In tbe meantime tbe respondent is fully authorized to act as administrator of bis intestate’s estate. In re Will of Winborne, ante, p. 463, is clearly distinguishable. In an administration, compliance with tbe statute in respect to bond is procedural while in a caveat proceeding it is jurisdictional. In an administration, jurisdiction is invoked by an application for tbe appointment of an executor or administrator. In a caveat proceeding authority to act vests in tbe clerk only “when a caveator shall have given bond” or otherwise complied with tbe statute in respect thereto. For tbe reasons stated tbe judgment below is Affirmed.