Moore v. Moore, 12 N.C. 352, 1 Dev. 352 (1827)

Dec. 1827 · Supreme Court of North Carolina

12 N.C. 352, 1 Dev. 352

Lemuel Moore v. Joseph Moore,

From Rutherford.

Between brothers, administration will be committed to the one most interested to execute it faithfully.

The County Court has power to revoke letters of administration issued during the same term, and to grant them to another.

The County Court of Rutherford, on the, Monday of March Term, 1827", ordered that letters of administration upon the estate of Rebecca Flecker, should issue to Lemuel Moore. The next day those letters were revoked, and administration committed to Joseph Moore. On an appeal to the Superior Court, it appeared that George Moore, the father of the present parties, died in the year 1817", leaving a will, of which lie appointed his sons Lemuel and Joseph executors ; by it, lie directed his estate to be equally divided between bis four children, of whom Rebecca Flecker was one. Property of the testator came to the hands both of Joseph and Lemuel, the former of whom had settled with the legatees, hot the latter had refused to account for the assets which came to his hands, and a petition was pending against him, filed by Joseph, Rebecca and James, the. other children of George Moore. Rebecca Flecker had been dead two years, she left children but no one had applied for hitters of administration upon her estate. ,

His honor Judge, Norwood, affirmed the judgment of the County Court, and awarded a writ oí procedendo, whereupon Ijemuel Moore appealed to this Court.

Wilson, for'ihe. Appellant, submitted the case without argument. No Counsel appeared for the Appellee. ,

Haul, Judge.

Boils the County ami Superior Courts have appointed Joseph Moore the administrator oí Rebecca Flecker deceased; and in the absence of all evidence in the case, tisis Court would see no reason why he ought to be removed, and another appointed. But from the evidence which accompanies this case, abundant reason is shown why he ought not to be removed.

The rights of the next of kin of Rebecca Flecker are snore likely to he legally adjusted, wises’e they are identified with similar rights claimed by Joseph Moore, both of which are to he examined and decided on in the petition now pending betweess him and Lemuel Moore.

The circumstance that Lemuel isad been previously appointed at the saíne term is not of itself a sufficient objection to the appointment of Joseph, it admits of two answers: 1st, it does not appear, that Joseph had previous notice of the intended application ; 2d, all the days of tiie term arc considered as one, and every thing is in the power of the Court during its continuance.

L’er Curiam. — Judgment affirmed.