Spencer v. Cahoon, 15 N.C. 225, 4 Dev. 225 (1833)

Dec. 1833 · Supreme Court of North Carolina

15 N.C. 225, 4 Dev. 225

Caleb Spencer, Administrator, &c. v. Wm. Cahoon.

The giving of a bond by an administrator is not a condition precedent to Ms appointment. Where it appeared from the records of the court, that A B was appointed Administrator, and qualified, as such, though a blank bond was signed by him and his securities, the acts of such Administrator were held valid, until his letters were called in and revoked.-

Detinue for sundry slaves, tried at Spring Term,. 1831, before Martin, Judge,

Fleas — general issue, and statute of limitations.

The plaintiff' claimed title to the slaves, as administrator de bonis non of one Jeremiah Gibbs.

The defendant set up title under a purchase from one Stephen Gibbs, who he alleged, had been previously appointed administrator of said Jeremiah. The evidence of his appointment, was the following entry on the records of the court of Pleas and Quarter Sessions, of Hyde county, “November sessions, 1816: It is ordered, that Ste“phen Gibbs be appointed administrator of the estate of “ Jeremiah Gibbs, on his entering into bond, in the sum “ of $4000, with John C. Bonner and William Selby, “securities.” It appeared that no bond had been given by Gibbs, but that lie, with said Brown and Selby, had signed a blank piece of paper endorsed with the figures $4000, that this paper was presented to, and accepted by the court", as the administration bond of said Gibbs, and he thereupon qualified as administrator. That said Gibbs returned an inventory, and sold some of the property as administrator. It is deemed unnecessary to mention the other points made in the case as they are not adverted to in the opinion of the court.

A verdict was returned for the plaintiff, from the judgment rendered, whereon, the defendant appealed.

Devereux, for the defendant.

W. C. Stanly, for the plaintiff.

Daniei, Judge.

After stating the case,, proceeded to deliver the opinion of the court.

The question for the court to decide, is, whether Stephen Gibbs was ever legally appointed administrator of Jeremiah Gibbs. The plaintiff contends that he was not, and that the sale and distribution of the slaves belonging to the estate of the intestate, by Stephen Gibbs, transferred no title to the defendant.

The case is imperfectly made up; it does not expressly state, that the records show, that Stephen Gibbs qualified as the administrator. We however take the fact to be, that the evidence of his qualification vas made to appear by the records of the court, and not by parol proof. The records then show an order made, appointing Stephen Gibbs administrator, the acceptance of the paper offered as a bond, and his qualification. There was enough appearing on the record, to authorise the clerk to issue letters of administration to Stephen Gibbs*. The appointment was not void, but voidable; the letters of administration were subject to have been called in, and repealed at the instance of any person interested; but whilst the-order made, remained unrepealed, the administrator had power from a competent authority, to-sell the slaves. The observation of the court, in the case of Haskins v. Miller, (2 Dev. 362,) is not an authority for the plaintiff in this case. The court there said, “ if the order had been, that administration would be granted to Taylor, upon his. giving bond, it would have been conditional and nugatory. Th*e court can make no such order, for they still would have to judge of the bond and administer the oath.” In the present-case, the court took upon themselves to judge of the bond, (certainly an erroneous judgment,) and did administer the oath. There remained no condition, in the opinion of the County Court, uncomplied with. They erroneously conceived, that a blank bond, signed and sealed by the parties, would be good, if it was af-terwards filled up by the clerk. Upon the whole, we think Stephen Gibbs, was a rightful administrator, and that the plaintiff in this case, from the facts stated, ought not to recover. A new trial is therefore awarded. We regret this the less, because on a second trial it can be shown whether the acceptance of the paper as a bond, and the qualification of Stephen Gibbs appears on the record of the court or not.

Per Curiam — J udgment reversed.