In re the Estate of Pitchi, 231 N.C. 485 (1950)

March 1, 1950 · Supreme Court of North Carolina
231 N.C. 485

In the Matter of the Estate of JOHN PITCHI, Deceased.

(Filed 1 March, 1950.)

1. Clerks of Court § 4—

The clerk of the Superior Court when acting as probate judge is a court of general jurisdiction in respect to probate matters.

2. Same: Executors and Administrators § 2a—

The jurisdiction of the clerk as probate judge is invoked by petition disclosing the requisite jurisdictional facts filed by some person entitled to qualify as executor or administrator. G.S. 28-1, G.S. 28-6.

3. Executors and Administrators §§ 2a, 2c—

The giving of bond is not essential to the efficacy of the appointment of an executor or administrator by the probate judge, but the failure to give bond is an irregularity which renders the letters of administration voidable.

4. Executors and Administrators § 3—

Where letters of administration have been issued by the probate judge they are not subject to collateral attack.

5. Same—

Where, upon service of order to show cause why letters of administration should not be revoked for failure of the administrator to give bond, the administrator files bond with sufficient surety which is approved by the clerk, the irregularity is cured and the denial of the motion to vacate the letters of administration is not error.

Appeal by petitioner from Bone, J., in Chambers at Nashville, N. C., 19 November 1949, "WilsoN.


Administration of the estate of an intestate, heard on motion to revoke and vacate the letters of administration.

*486John Pitcbi died intestate 6 July 1948. On 13 September 1948, Nelson Pitcbi was appointed administrator of bis estate, and letters of administration were issued. No administration bond was executed, tendered to, or accepted by tbe clerk. Tbe administrator instituted an action against Bogue Sound Club, Inc., under tbe wrongful death statute. Thereupon, said corporation petitioned tbe clerk for a rule to show cause why said letters should not be vacated. Tbe rule was issued and served upon tbe administrator. Tbe administrator then filed with tbe clerk an administrator’s bond which was approved and accepted by tbe clerk.

When tbe rule to show cause came on to be beard, tbe clerk found tbe facts and, upon tbe facts found, adjudged that Pitcbi was and is tbe duly appointed, qualified, and acting administrator of tbe estate of John Pitcbi, and denied tbe motion to vacate. Tbe petitioner appealed to tbe judge of tbe Superior Court. Tbe judge, upon bearing tbe appeal, affirmed tbe judgment of tbe clerk, and petitioner appealed to this Court.

Connor, Gardner & Connor for petitioner appellant.

Charles B. McLean and F. L. Carr for respondent appellee.

Barnhill, J.

Tbe orderly administration of tbe estates of decedents is a necessary incident to tbe devolution of property by inheritance or under testamentary devise. Such administration is a matter of public interest and is regulated by law. Under our statute jurisdiction is vested in tbe clerk of tbe Superior Court acting as probate judge. When so acting, bis court, in respect to probate matters, is a court of general jurisdiction.

His jurisdiction is invoked by application or petition by some person entitled to qualify as administrator or executor, G.S. 28-6, in which tbe requisite jurisdictional facts, G.S. 28-1, are made to appear. Batchelor v. Overton, 14 S.E. 20; Holmes v. Wharton, 194 N.C. 470, 140 S.E. 93; Brooks v. Clement Co., 201 N.C. 768, 161 S.E. 403.

While tbe administrator is required to give bond for tbe faithful performance of tbe trust reposed in him, G.S. 28-34, tbe authority of tbe probate judge to appoint does not rest on tbe bond. That is merely a question going to tbe manner of qualifying under tbe appointment. 21 A. J. 449, see. 126.

“Tbe giving of the bond, though required, is not essential to tbe efficiency of tbe act of appointment itself.” Howerton v. Sexton, 104 N.C. 75; In re Wiltsey’s Will, 109 N.W. 776; Beresford v. Coal Co., 98 N.W. 902, 70 L.R.A. 256; Leatherwood v. Sullivan, 81 Ala. 458; 21 A.J. 449, sec. 126; 33 C.J.S. 988; 2 Amer. Law of Administration 836, sec. 253.

When tbe appointment has been made and letters of administration have been issued, tbe letters are valid. “Tbe failure to give a bond or tbe *487giving of an insufficient bond is only an irregularity, in no way affecting tbe validity of tbe appointment.” Batchelor v. Overton, supra; Hughes v. Hodges, 94 N.C. 56.

Tbe irregularity makes tbe letters of administration voidable only — a condition wbicb may be cured by full compliance with tbe statute. In re Wiltsey’s Will, supra. Tbe conclusion tbat tbis is true is implicit in tbe uniform decisions in tbis and other jurisdictions to tbe effect tbat sucb letters once issued are not subject to collateral attack, Batchelor v. Overton, supra; Tyer v. Lumber Co., 188 N.C. 274, 124 S.E. 306; Brooks v. Clement Co., supra, for a void order or decree is coram non judice and may be attacked whenever and wherever it is asserted. Monroe v. Niven, 221 N.C. 362, 20 S.E. 2d 311.

Of course tbe issuance of letters of administration without first requiring a good and sufficient bond is a serious irregularity. Whenever sucb inadvertence is called to tbe attention of tbe clerk be should promptly demand bond, in default of wbicb be should recall and revoke tbe letters of administration. In tbe meantime, bis official bond is liable for any devastavit occurring prior to tbe filing of a bond. Plemmons v. R. R., 140 N.C. 286.

Here a bond with sufficient surety has been tendered to. and accepted and approved by tbe clerk. As tbe only asset of tbe estate is tbe claim for damages for wrongful death, tbe bond, for tbe time being, is sufficient in amount. Upon a recovery in tbe pending suit tbe clerk may and should require additional bond commensurate with tbe amount of recovery. In tbe meantime tbe respondent is fully authorized to act as administrator of bis intestate’s estate.

In re Will of Winborne, ante, p. 463, is clearly distinguishable. In an administration, compliance with tbe statute in respect to bond is procedural while in a caveat proceeding it is jurisdictional. In an administration, jurisdiction is invoked by an application for tbe appointment of an executor or administrator. In a caveat proceeding authority to act vests in tbe clerk only “when a caveator shall have given bond” or otherwise complied with tbe statute in respect thereto.

For tbe reasons stated tbe judgment below is