Garrison v. . Cox

Merrimon, J. (after stating the facts). The chief purpose of the law in cases like this, is to have the estate of the bites- *355 tate duly administered by a competent person. The statute (The Code, §1376), however, provides that the husband or the widow, and certain other classes of interested persons, shall have the right, first in the order prescribed, to apply for and receive letters of administration, but if for any cause they do not, any competent person may. It is not essential that a person of a class in the order prescribed shall administer. Hence, an appointment, though the person appointed may not be of such classes, would not be void, although the appointee would, in such case, be subject to have his letters of administration revoked, and his appointment set aside, in favor of the person entitled, if the latter had not, in some way, waived his right, or otherwise concluded himself. The •appointment is not void because the proper person was not the appointee. Hyman v. Jenkins, 5 Ire., 267 ; State v. Kendall, Bus., 242; Jenkins v. Sapp, 3 Jones, 510; Atkins v. McCormick, 4 Jones, 274 ; Wallis v. Wallis, Winst., 78. In this case, the widow of the intestate, had the right, if •she were in all respects qualified, first in order, to be appointed administratrix. But she did not at any time apply to be appointed, nor did she, nor does she now, complain of the appointment made; on the contrary, after this proceeding was begun, she filed with the clerk her written renunciation of her right, and this appears as a fact. She alone could complain that the clerk had failed to appoint her, and she is now concluded. As said above, the fact that the defendant was appointed before she renounced her right, did not make his appointment void. Indeed, if it had been made at once, after the death of the testator, it would not on that account have been void. In that case, the widow, and she alone, might have applied to have the letters revoked, on the ground that her right had been prejudiced. It was not essential that she should be appointed, and she might forego and waive her right; and also, the next class of persons in the order of right to be appointed, and the third class in such order, *356 might likewise waive their rights respectively. So that, the objection that the widow was not appointed, is without foundation. The defendant was of the next of kin, of the degree entitled to apply for letters of administration. He was therefore eligible to be appointed, as were also the others of the next of kin of a like degree with him. The clerk had authority to appoint him — to select him from among the others. The statute, (The Code, §1376), expressly provides that where the next of kin are of equal degree, the clerk may appoint one or more of them, in his discretion. He ought, of course, to appoint the one best qualified, but if he selects one fit and competent, his exercise of discretion is not reviewable. The right of the plaintiff to be appointed was not absolute. Atkins v. McCormick, supra. They cannot, therefore, be heard to complain that the defendant, as to -them, was not eligible, and not entitled to be appointed. But if this were not so, the appointment of the defendant was authorized, regular, and valid upon another ground. More than six months had elapsed-next after the death of the intestate before his appointment was made, and as those who were entitled to apply for letters of administration, failed to do so within that time, they were properly treated as having waived or abandoned their right to have letters granted to them; and as the public administrator failed to apply for letters of administration, as he ought to have done, the clerk was authorized to appoint any fit and competent person to administer the estate. This seems to be implied from the statute, (The Code, §1394), which authorizes the public administrator to apply for letters of administration on the estates of intestates, when no such letters have been granted within six months next after their deaths respectively. This Court so held in Hill v. Alspaugh, 72 N. C., 402. And it had been repeatedly held, before the present statute was enacted, that persons entitled under former statutes to be appointed admin- *357 trators of estates of intestates, waived or lost their rights by failing to apply for letters within a reasonable time. State v. Kendall, supra; Jenkins v. Sapp, supra. The appointment of the defendant was not void, simply because his bond as administrator was not justified, nor was it necessarily voidable on that account. It may be, that it was good and solvent. The cleric may, at the suggestion of the plaintiffs, or any person, or ex mero motu, require him yet to justify it, and he ought to do so. If the defendant cannot justify it, or cannot make it good, or give an additional satisfactory one, he might, for that cause, upon proper notice, be removed by the clerk, and he might appoint another administrator instead of the present one. The provision of the statute requiring the bonds of administrators and collectors to be justified, should be carefully observed by Clerks of the Superior Courts in the exercise of their jurisdictional functions, but obviously it is directory and not essential to the appointment of the administrator or collector, and the failure to justify the bond, does not render the appointment void. Nor does the fact that the defendant is applying for license to sell the real estate of his intestate to make assets to pay debts, affect the matter of this proceeding. If the defendant’s present bond is not sufficient, ho may bo required to give another bond for double the value of the real estate he asks permission to sell, as allowed by the statute, The Gode, §1388. The Judge properly affirmed the order of the clerk dismissing the proceeding, and his order must be affirmed. No error. Affirmed.