Taylor v. . Biddle

Byhum, J. At the common law, the Ordinary could repeal *5 an administration at pleasure, but now, by statute, it cannot be revoted, except for just cause. 1 Williams on Executors, 509. The. Judge of Probate here, by Art. IV, sec. 17, of the Constitution, is vested with the general jurisdiction and powers of the Ordinary, and with such additional powers as are conferred by our statutes. These statutory powers are contained in Bat. Rev. chap. 45, sec. 25, and chap. 119, sec. 36-’7-’S, and are in affirmance and enlargement of the common law jurisdiction, and are decisive of this ease. These sections of the Revisal, taken together, elearlv confer upon the clerk the power of removal for the failure of the administrator to discharge the duties of his office as prescribed by law. But without invoking the aid of our statutes, the power of removal is inherent in the office at eommon law, and must of necessity be so, to prevent a failure of j ustiee. So whether we look to our statutes or outside of them, the Judge of Probate, in the order vacating the administration of Mitchell, after notice served and a day in court, acted within the scope of his jurisdiction and powers. The order of revocation, therefore, cannot be void, and if voidable for irregularity it cannot’be impeached, in this collateral way, but only by a direct proceeding for that purpose before the Probate Judge of Craven eonnty, where the letters were granted. ’ It is, however, contended that this administration, having been originally granted prior to the adoption of the Constitution, and the legislation of 1868, changing the law for the settlement of estates, (chap. 45, Bat. Rev ,) is to be governed by the laws existing prior to July 1st, 1869, the time when chap. 45, Bat. Rev., went into effect. And inasmuch as no statute then existed, creating the office of public administrator, or providing for the removal of an administrator in the manner it was exercised in this case, the Judge of Probate had no power of removing Mitchell, or of appointing the public adnainistaatoa’as his successor. The answer to these propositions depends upon the proper constinciion of chap. 45, Bat. Rev. As this chapter repeals *6 chap. 46, Eev. Code, entitled “ Executors and Administrators,”' its provisions must govern this case, both as to the removal and appointment of administrators, otherwise we have no statute law applicable to original administrations granted prior to July, 18.69, which, is our case. It is perfectly clear from see. 58 of this chapter, declaratory of the estates to which it applies, and the proviso therein that both as to jurisdiction and as to practice and procedure, the powers of the Court of Probate extend equally to. administrations granted prior and subsequent to the first of July, 1869. It follows that the Probate _Court can grant administration to a public administrator, subsequent to the first of July, 1869, although the original administration was prior to that date; But when lie does administer he is-to be governed,, in the settlement of the estate, by the laws which, were in force immediately preceding the first day of July, 1869. So,, from the record before us, it appears that Mitchell was removed and Brinson appointed as administrator de 'bonis.non> &c., of the estate of Jos. B. Outlaw. The motion of the de,-.fendant, Brinson, to be substituted in the proceedings as plaintiff in the stead of Mitchell, should have been allowed by the. Judge of Probate of Carteret. There is no error in the judgment of his Honor reversing the order of the Court of Probate. This will be certified, to the end that further proceedings b© had according to law. Pee CuetaM. Judgment affirmed.