Shober v. . Wheeler

Connor, J., after stating the case: Reversing the order in which the exceptions appear in the record, we dbnsider first the one attacking the validity of the judgment' rendered by the Court against Jennings, administrator of Mrs. Wheeler, fixing the amount of the debt held by Hutter. The learned counsel for defendants insist that the letters issued to Jennings were void, for all purposes, because the Court had no jurisdiction to issue them. It must' be conceded that the older authorities, at least some of them, held that intestacy was as essentially jurisdictional as death and domicile or tona nota-tilia. That the production of a will after letters of administration were granted showing the absence of such jurisdictional fact rendered the person so appointed an officious in-termeddler. The theory upon which the courts so held was that the executor took title to the personalty under the will, and that no act of the Court could deprive him of such *407 title. It is insisted that the law is so held by this Court in Springs v. Irwin, 28 N. C., 27. The facts there were not the same as here. In that case the record showed, and the letters of administration recited, that there was a will, and did not show that the executor named in it had either refused to offer it for probate or renounced his right to qualify. Nash, J., said: “If, therefore, the letters show that there is a will and the existence of the executor be unknown, or before his renunciation, the Court cannot grant letters of administration with the. will annexed. If they do, the letters are void and confer no authority or power on the administrator.” It may be that language is to be found in the opinion capable of the conclusion drawn by counsel. Eor the reason stated, the exact point was not decided. It is probable that at that time the law was considered to be as claimed. The case is not cited until London v. Railroad, 88 N. C., 584. The question now before us was not involved, but Smith, G. J., noticing the several cases in. which this Court had held the grant of letters of administration void, refers to Irwins case. In his conclusion, however, he says: “If the person on whose estate the Court undertakes to grant letters testamentary or of administration be dead, and, at the time of his decease, have his domicile or have bona notar bilia to be administered, the jurisdiction exists.” Such seems to be the law in other States, and we think consonant with reason and policy. If there be irregularities in the proceedings in which letters were granted, the Court has ample power, upon proper application, to review its action and revoke them. In an exhaustive note to Dobler v. Stro bel, 81 Am. St. Rep., 530 (p. 555), Mr. Freeman says that formerly it Avas held that when letters of administration were granted and a will was afterwards produced, the letters were void for all purposes—citing authority. He further says: *408 “At the present day the rule seems to be firmly established to the contrary” — that such letters are only voidable and that the acts performed by the administrator are binding in a collateral proceeding. In Schluter v. Bank, 117 N. Y., 125, East, J., considers the law as settled; see, also, Broughton v. Bradley, 34 Ala., 694 (73 Am. Dec., 474). 'While we think the authorities cited fully sustain the plaintiffs contention and his Honor’s judgment, it would seem to be settled in this State by statute. Revisal, sec. 37, makes it the duty of the Probate Court, upon the production of a will, to make an order revoking the letters and cause it to be served on'the administrator, and providing that all of his acts done in good faith until the service of the order of revocation shall be valid. AA^e do not think that Springer v. Shavender, 116 N. C., 12, is in point. The defendants’ next exception is directed to the jurisdiction of the Court to entertain the motion and make the order to sell Mrs. AVheeler’s land to pay plaintiffs’ debt. It appears from the record and his Honor’s findings of fact that the action was originally brought by plaintiff Shober against W. H. AVheeler and wife, Mrs. Ann J. AVheeler, and Jennings for the purpose of vacating certain conveyances made by Wheeler to his wife. Plaintiff Hutter, who had acquired by assignment a note executed by Wheeler and the other defendant to Pettyjohn, was made a party plaintiff. The cause was brought to trial and-the deeds set aside (113 N. C., 370), judgment rendered adjusting the priorities of the several creditors and the land sold. Afterwards, upon the death of Mrs. AVheeler, Jennings was' appointed her administrator and made a party in his representative capacity and judgment rendered, as we have seen, upon the Hutter debt. Thereafter Wheeler, having produced the will and qualified, was brought in as executor. No action being *409 taken to subject tlie land of which Mrs. Wheeler was possessed at the time of her death to the payment of the judgment, the motion in the cause was made as appears in the record. ITis Honor finding that the devisees of Mrs. Wheeler were properly before the Court, that there was no personal estate and that the Hutter judgment was the only debt -outstanding against Mrs. Wheeler, directed the land sold, etc. It may be that if when the order making the new parties was made, objection had been taken, the cause should have gone off the docket by a final judgment. It does not appear that any exception was taken or motion to that effect made. At any time after the death of Mrs. Wheeler and the rendition of his judgment Hutter could have proceeded in the Superior Court to compel a sale of the land to pay his debt. This is expressly authorized by section 129, Revisal, being Acts of 1876-77, cli. 241. This statute was construed in Haywood v. Haywood, 79 N. C., 42, and other cases, the last being Fisher v. Trust Co., 138 N. C., 90. In all of these cases it is held that concurrent jurisdiction with the Probate Court is conferred on the Superior Court in a civil action to settle estates and subject real estate to the payment of debts. The parties all being before the-Court having jurisdiction to administer the relief, we can see no good reason why they should be sent out of court and compelled to begin a new proceeding, which must have resulted in precisely the same way. In creditors’ suits courts of equity always took charge of all of the property, subject to the debts, and brought all creditors in, to the end that all rights should be administered and complete relief given. It is the policy of the law to do 'so and to prevent a multiplicity of suits, expensive litigation and conflicting claims upon property. Courts usually refuse to entertain separate actions, compelí- *410 ing all of the creditors to come in and be bound by tbe final judgment. Dobson v. Simonton, 93 N. C., 268; Hancock v. Wooten, 107 N. C., 9. His Honor finds that there are no other creditors, that Mrs. Wheeler has no personal estate and that the amount due .Hutter on his judgment is ascertained. Upon these fact's he is entitled to have his judgment paid out of Mrs. Wheeler’s lands. This is all that is awarded him. The judgment must be Affirmed.