Tulburt v. . Hollar

Davis, J. (after stating the facts). We have not been favored with any argument on behalf of the appellants, but it is suggested that the action is brought against the defendant Hollar and the surety on his bond upon the assumption that he had no right to resign as administrator, and that the appointment of Welborn was void, and, therefore, no administrator de bonis non could be appointed. In Washington v. Blount, 8 Ired. Eq., 253, it is said that an executor, after having accepted and entered upon the, discharge of his trust, cannot resign, but can “only be removed upon a suggestion of unfitness or unfaithfulness.” However that may have been with regard to executors, and, assuming it to have applied to administrators, we are not called upon to determine whether the removal of an executor or administrator from the State would not constitute such “ unfitness ” or disqualification as would justify *409 his removal; and a resignation and acceptance, and the appointment of a successor, can have no other practical effect than a removal or revocation of letters. Section 103 of The Code, which confers upon Clerks of the Superior Courts power “to grant letters testamentary and of administration,” also confers upon them the power “ to revoke letters testamentary and of administration.” By section 1521, it is made the duty of Clerks, in all cases of revocation, to “ appoint some other person to succeed in the administration, &c.” Section 1517 enacts that, “whenever the letters of an executor, administrator or collector are revoked, his bond may be prosecuted by the person or persons succeeding to the administration of the e.-fcate,” &c., and •an action, even if pending against the removed executor or administrator, can only be'continued against him within the limitations prescribed in section 1514. ' In Taylor, Adm’r, v. Biddle, 71 N. C., 1, it was said by Bynumj J.: “ Without invoking the aid of our statutes, the power of removal is inherent in the office at common law, and must of‘necessity be so, to prevent a failure of justice.” We think it clear that the Probate Court had the power, for good and sufficient cause, to remove the' administrator, or, for like cause, necessarily equivalent, to permit him to resign his trust, ,and appoint F. D. Welborn in his stead; and it appears that this was done in proceedings instituted for that purpose, and no exception was taken thereto, or appeal therefrom, and it is too late to disturb the judgment of <the Probate Court after a lapse of near twenty years. Whether whatever action can be brought should not be against the representative of the deceased administrator, F. D. Welborn, and the sureties on his bond, it is not necessary for us to determine; but an administrator de boñis non is the proper person to bring the action. See The Code, § 1518; Latham v. Bell, 69 N. C., 135; Carlton v. Byers, 70 N. C., 691; *410 Merrill v. Merrill, 92 N. C., 657, and the numerous cases there cited. In ttie case of Beall v. New Mexico, 16 Wall., 540, to which attention has been called by the Chief Justice, it was held that an administrator de bonié non could not maintain an action on the bond of the original administrator, but that it must be brought by the persons directly beneficially interested in the estate, whether distributees, next of kin, or creditors, and it is there said : “ To the administrator de bonis non is committed only the administration of the goods, chattels and credits of the deceased which have not been administered.” However it may be elsewhere, under the section of The Code and decisions referred to, it is different in this State, and it is well settled that such an action cannot be maintained by the next of kin, distributees or creditors. When Hollar settled with Welborn, his successor, under the direction of the Court, it terminated his “ trust,” and was a fulfilment of his obedience to the “lawful orders of the Clerk or other Court touching the administration of the estate committed to him,” as required by the condition of his bond. No error. Affirmed.