Mitchell v. Downs

WinboRNE, C. J. In this State it is provided by statute, G.S. 28-1, that the Clerk of Superior Court of each county has jurisdiction within his county, among other things, to grant letters of administration with the will annexed. In this State it is also provided by statute, G.S. 28-24, that an “administrator cum testamento annexo must observe the will”; that “whenever letters of administration with the will annexed are issued, the will must be observed and performed by such administrator, both with respect to real and personal property”; that “such administrator has all the rights and powers, discretionary or otherwise, unless a contrary intent clearly appears from the will, and is subject to the same duties as if he had been named executor in the will.” These provisions are incorporated in an amendment, 1945 Session Laws, Chapter 162, rewriting the old statute G.S. 28-24, and repealing all laws and clauses of laws in conflict therewith effective on ratification 10 February, 1945. And the general rule is that after an executor or administrator is appointed and qualified as such, his authority to represent the estate continues until the estate is fully settled, unless terminated by his death, or resignation, or by his removal in some mode prescribed by statute, or unless the letters be revoked in a manner provided by law. See Edwards v. McLawhorn, 218 N.C. 543, 11 S.E. 2d 562. In the Edwards v. McLawhorn case the Court cites and quotes with approval from Johnston v. Schwenck, Ohio St. 124 N.E. 61, 8 A.L.R. 170, the following: “It is the universal holding that the authority of an executor or administrator to represent the estate continues [433] until the estate is fully settled, unless he is removed, dies, or resigns, and that the filing of what purports to be a final account does not extinguish the trust." Indeed, in the case Weyer v. Watt, 48 Ohio St. 545, 28 N.E. 670, it was held that an order by the court directing that the administrator be discharged, made at the time of the filing of a final account, does not terminate his authority if assets of the estate remain unadministered. Indeed, until the debts have been paid, the duties and obligations of the administrator continue. Creech v. Wilder, 212 N.C. 162, 193 S.E. 281. Moreover it is provided by statute G.S. 28-147 that “In addition to the remedy by special proceeding, actions against executors, administrators, collectors and guardians may be brought originally to the Superior Court at term time.” Davis v. Davis, 246 N.C. 307, 98 S.E. 2d 318. “And in all such cases it is competent for the court in which said actions are pending to order an account to be taken by such person or persons as said court may designate, and to adjudge the application or distribution of the fund ascertained, or to grant other relief as the nature of the case may require.” Casualty Co. v. Lawing, 223 N.C. 8, 25 S.E. 2d 183. It now appears from the record and case on appeal that plaintiffs here assert claim against the estate of Harry E. Poulos which if established will constitute a debt of said estate, and funds are in the hands of the Clerk, as shown in return to writ of certiorari, which would indicate that factually the estate has not been settled, and that the duty devolves upon the defendant as administrator c.t.a. d.b.n., to perform his duty as such. However it appears that the Clerk of Superior Court made an order of discharge of defendant. This order is subject to being set aside on motion in the cause, and this proceeding may be treated as such motion. Craddock v. Brinkley, 177 N.C. 124, 98 S.E. 280. Then the way would be open to plaintiffs to assert claim against the administrator of the estate. It may be that the court below may find it expedient to allow amendment to allege facts to fit the factual situation in hand. And pending decision the court should retain the fund in custodia legis. The cause will be remanded to the end that further proceedings may be had in accordance with law. Error and remanded.