Collins v. Turner, 4 N.C. 105, 1 Taylor 105 (1817)

Jan. 1817 · Supreme Court of North Carolina

4 N.C. 105, 1 Taylor 105

COLLINS against TURNER.

Where Lst. nisu-ation are í>ran,te<1 by a county in t&stathnever resided, they are void : and aVetit'ioa to set w^dismiss» ed*

ÍHIS was a Petition, filed by Josiah Collins, in the County Court of Bertie, calling upon Simon Turner to show cause why certain Lecters of Administration granted him, the said Turner, by the County Court aforesaid, on the goods, chattels, &c- of á certain Hamilton Blackburn, should not be rescinded.

Hamilton Blackburn left this country for Europe, come time about the years Í795 dr 1796, constituting the said Josiah Collins his agent and attorney, and has never been heard of since. No Letters of Administration had been taken on his estate by the said Collins or any othei person, until November Term of Bertie County Court,’ in the year 1813. Simon Turner, agent and attorney for the Trustees of the University of North-Carolinü, applied for and obtained Letters of Administration on said estate^ and filed a bill against said Collins, for an account of said Blackburn's estate. The said Collins, in his’ answer, acknowledged himself greatly debtor to Blackburn, but after-wards applied to the County Court of Chowan for, and obtained Letters of Administration on his estate, and now files his Petition to rescind the Letters granted to Turner, as having been improperly granted by the County1 Court of Bertie*

On the trial in the County Court, the Justices decided that the Letters were properly and rightfully granted, and refused to rescind them ; from which Judgment, Henry W. Long, Esq. the Attorney employed by said Collins to file the Petition, prayed an Appeal, and e'nléredinto bond, signing himself as Attorney for Josiah Collins, and thd bond being filled out in the name of II. W. Long, as Attorney as aforesaid.

At Oct. term, 1815, of Bertie Superior Court of Law,this case coming on to be heard, the presiding Judge or» dered the same to be transmitted to the Supreme Court, for their determination, on the following points, viz.

1st. Whether, or not, the County Coúrt of Bertie had authority, or could properly grant Letters of Administration on said Blackburn’s estate, it being admitted that said Blackburn was an inhabitant of, and resided in the Town of Edenton, and County of Chowan, before, and at the time of his departure from this Country.

2d. Whether the Court would interfere, and set aside the aforesaid Letters in favour of the Petitioner, when it evidently appears that the said Petitioner is not the proper person to whom Administration should be granted ?

Sdi Whether the Appeal was properly taken, the bond being filled out in the name of Henry W- Long-, as Attorney for Josiah Collins, and signed by Mm said Long, as Attorney as aforesaid, without producing any authority for doing so-—the Defendant, Turner, having moved to dismiss the Appeal, on the aforesaid grounds.

Daniel, J.

delivered the Opinion of the Court s

Three points áre submitted for the opinion of this Court. On the first, we afe of opinion, that the County Court of Bertie had no authority to grant the Letters of Administration to the Defendant, or any other person, as the intestate, Blackburn, never was a resident of that County ; and the Act of Assembly of 1789, c. 23, § 1, requires Letters of Administration to be granted by the Court where the person dying usually resided.

Secondly. We think, as the Letters of Administration granted by the County Court of Bertie were void, and not voidable, there was no necessity to trouble the Courts with the Petition, seeking to set aside that which in lavr is a nullity.

If Administration be granted by an incompetent authority, as by a Bishop, when the intestate had not bona no* tab'úia; or by an Archbishop, of effects in another Province, it is void.^*

For the above reasons, we are of opinion the Petition should be dismissed. It is unnecessary to decide the lást point.

* Hard 216 Tol. 90.