Little v. . Berry

Ashe, J. (after stating the facts). The judgment of his Honor in the Court below, reversing and vacating the judgment of the Clerk, seems to have been founded upon the ground, that the Clerk granted letters of administration de bonis non, ow¡rn tes-tamento annexo, to B. A. Berry as the appointee of Combs and his wife. His Honor concedes that Combs and his wife, as next-of-kin, were entitled to the letters, but that they had no right to designate the person who should be appointed in their stead, and it was error in the Clerk to grant the letters to Berry, on the ground it was a matter within his discretion. We are informed by the pleadings in the case, that John Sudderth died in 1865, but there is nothing in the case to show when his will was proved, or when his executors were qualified, and it is therefore uncertain whether the letters testamentary were granted to his ■executors before the 1st of July, 1869, or not — and hence we are unable to see whether the law applicable to granting of ad *436 ministration, in force before that time, applies to this ease. If the letters were granted prior to that time, then by reference to. the case of Sutton v. Turner, 8 Jones, 403, we find that it was. held by this Court, that “The right of any person to the grant of administration upon the estate of a decedent, depends upon the statute on that subject, which applies only to the cases oF persons dying intestate. Whenever the deceased has left a will,, the Courts of Ordinary have a discretionary power, in the event of there being no executor named in the will, or if those nominated die, or refuse, to qualify, to appoint any person to administer with the will annexed.” Under this deoision, the Clerk had the discretionary power to grant letters to Berry. But we confess we do not comprehend how such a construction could have been given to the statute. For the statute referred to, was Rev. Code, oh. 46, §2, which expressly provides that where there is a will, and the executor shall refuse, &c., that administration shall be granted to the widow, &c. It reads, “When any person shall die intestate, or having made a will, if the executor shall refuse-to prove the same or qualify, administration shall be granted to the widow, and after her to the next-of-kin, or to both, at the discretion of the Court.” The learned and pains-taking Judge who spoke-for the Court in that case, could not have had the statute before him-when he wrote the opinion. But even Homer would sometimes nod. If, however, the will was proved, and letters testamentary were granted after the 1st of July, 1869, then The Code, §2160, applies, by which it. is provided that, “If there is no executor appointed in the will, or if at any time, by reason of death, incompetency adjudged by the Clerk of the Superior Court, renunciation actual or decreed, or removal by order of the Court, or on any other account, there is no executor qualified to act, the Clerk of the Superior Court may issue letters of administration with the will annexed, to some suitable person or persons, in the order prescribed in the chapter entitled Executors and Administrators,” and the order there prescribed is: “ 1st- To the husband or widow. 2nd. To the next-of-kin in the order of their degree,. *437 •&c. 3rd. To the most competent creditor, &c. 4th. To any other person legally competent.” According to these provisions of The Code, R. D. Combs and his wife were clearly entitled to letters of administration d. b. n. ■o. t. a. on the estate of John Sndderth, as his next-of-kin, and, being so entitled, they had the right to decline the letters, and ■designate some suitable person to be appointed in their place and etead. In Willis v. Willis, 1 Winston, 78, which was a contestlike ■this, between the widow and one of the highest creditors, for letters of administration on the decedent’s estate, and they were granted to the widow ; but it appearing that she was only seventeen years old, an appeal was taken to the Superior Court, and ■thence to this Court, where PeaesON, C. J., delivering the opinion, held that she could not be appointed until she arrived at full age, but that the Court might have granted letters of administration to some other person durante minore oetate, so that' when she arrived at full age, the general letters of administration could be granted to her, or the Court might have granted administration to such person as she should appoint. S. P. Richie v. McCouslin, 1 Hay., 220. But take the case either way, whether the letters were granted before or after the first of July, 1869, we think, by reference to the statutes and the decisions cited, the Clerk had the right to ■appoint the person designated by the next-of-kin, in preference to the largest creditor, and it can make no difference whether he ■should have assigned, as a reason for his judgment, that it was a matter of discretion, since he exercised it in favor of the appointee of the next-of-kin. There is error, and the judgment of the Superior Court is therefore reversed, and that of the Clerk affirmed. Let this be ■certified to the Superior Court of Burke county. Error. Reversed.