Jinkins v. Sapp, 48 N.C. 510, 3 Jones 510 (1856)

Aug. 1856 · Supreme Court of North Carolina

48 N.C. 510, 3 Jones 510

ELIZABETH JINKINS et. al. vs. SAMUEL SAPP.

If the widow of an intestate fail to make application for administration for an unreasonable length of time, and the Court, after such delay, give the appointmcnt to some other person, she has no further right, and the Court ought not, at her instance, to revoke and declare void such appointment.

This was an application to tlie County Court to have letters of administration set aside, heard before his Honor, Judge Saunders, at the Eall Term, 1854, of Ashe Superior Court; brought up by successive appeals.

It was a contest for administration on the estate of Joseph Jinkins. The petition set forth that, at November Term, 1850, letters of administration were granted to tbe defendant, ■ Samuel Sapp; that tbe petitioner is the widow of said Jinkins, and as such was entitled to the office; that she had no notice of the defendant’s intention to apply; that said Jinkins did not have, at his death, sufficient personal estate to constitute a reasonable year’s allowance for her as his widow; that, since his appointment, the defendant has brought suit against her and Eeuben Sutherland, her son-in-law, for the property which she has retained from the estate of her husband-. Tlie petition prays that tlie letters may be revoked, and that letters of administration may be granted to her.

The answer of the defendant denies that the plaintiff did not have notice. It avers that the plaintiff, for six or seven years before bis death, bad abandoned her husband, and bad lived separately from him ; that the defendant was a creditor, and after waiting a reasonable length of time, was entitled to administer; tliat be did wait more than two years before making application, and, several times before this, requested the plaintiff to administer, -which she refused to do; it admits that a suit has been brought against the petitioner for the property of the estate, but denies that this suit was brought to harrass her, and says it was done Iona fide to collect the assets of the estate ; that it was more than five years from the death of the intestate before this application was made by the petitioner, to set aside the letters granted defendant. The answer retorts upon the plaintiff that she is seeking to avoid the effect of this suit by assuming the character of administratrix, so that she may continue to hold the estate without paying the debts ; and avers that there is sufficient of the estate, if properly managed, to answer all claims against it.

It appeared in the case that the property was very small— not more than sufficient to amount to a decent year’s provision for the plaintiff. There was replication and proofs taken. The case was heard upon the petition, answer and proofs, and his Honor was of opinion that the letters granted to defendant should be set aside, and administration granted to the plaintiff; from which judgment the defendant appealed.

Lenoir, for plaintiff.

JBoyden and Neal, for defendant.

Pearson, J.

This case is governed by Stoker v. Kendall, Busb. Rep. 212. It is there held that the obj ect of appointing an administrator is to have the estate of the intestate taken care of; and if the next of kin do not apply for the appointment in reasonable time, the Court should give it to some other person. If any thing, this is a stronger case than Stoker v. Kendall, for, here the widow has taken possession of the property under the privilege given to her by the Act of Assembly, and for two years, in direct violation of the requirement of the law, has failed to apply for administration, during which time she has held possession in defiance of law, so as to make it necessary for a creditor to seek the appointment, and bring suit against her and her son-in-law (the defendant Sutherland) in order to collect in the estate and have it settled, (Sharpe v. Farmer, 1 Dev. and Bat. 122 ; Ramsay v. Woodard, ante 508, at this term); and some five years after the death of her husband, for the purpose of getting rid of the action in the name of his administrator against them for wx’ongfnlly intermeddling with the estate, they file this petition ! The only ground to sustain the order of the County Court, granting the pi’ayer of this petition, and revoking the letters of administration theretofore granted to the defendant, is the suggestion, based on affidavits, that the intestate did not leave more than enough property for the widow’s year’s provision. So far from that being a reason why the widow should be allowed, without ceremony, to step in and heVp herself, it shows the propriety of having the estate represented by a creditor, whose interest it is to see that some regal’d is paid to the forms and requirements of our several statutes, in such cases made and provided.

The order of the Superior Court affirming the order of the County Court, must be reversed, and the petition dismissed with costs.

Per Curiam.

Judgment reversed.