Atkins v. McCormick, 49 N.C. 274, 4 Jones 274 (1857)

June 1857 · Supreme Court of North Carolina

49 N.C. 274, 4 Jones 274

JOHN L. ATKINS v. DANIEL McCORMICK.

In a contest as to tlie right of administration,, there are strictly no plaintiffs or defendants. All applicants are actors, and some may withdraw and others come in, at any time during the progress of the cause, even after an appeal from the County to the Superior Court.

The next of kin of a deceased person, after the widow, have the right amongst them of administration on the estate of a deceased relative, but this right is not vested in one more than another, and the degree of propinquity does not give a legal priority. The Court should select from the class, the person best qualified to take care of the estate.

The case was an application for letters of administration on tbe estate of Alexander Clark, dec’d., beard before Peesok, J., at tbe Spring Term, 1857, of Harnett Superior Court.

At tbe September Term of tbe County Court of Harnett County, Daniel McCormick claimed tbe right of administering, as the appointee of Catharine Clark, wife of Malcom Clark, she being, a sister of tbe deceased.

Tbe deceased left no widow nor child or children, nor tbe descendants of such, and left no brother or sister, except Mrs. Clark. He left nephews and neices, tbe children of a deceased sister, who were, and still are, in Scotland.

At tbe same time, John McDougald was an applicant upon tbe claim of kindred to the deceased.

Malcom Clark had joined in the appointment of McCormick, but it appeared that be was incompetent either to administer tbe estate, orto join bis wife in making such appointment, though she herself was competent to make tbe appointment.

Tbe County Court gave tbe administration to McDougald, from which order McCormick appealed to the Superior Court. I.n that Court, at Pall Term, 1856, McDougald withdrew from the contest, and John L. Atkins, who was in no wise related to the deceased, made application as the appointee of the next of kin in Scotland. The Superior Court gave the administration to Atkins, and McCormick appealed.

Kaughton, McKay and Kelly, for plaintiff.

Shepherd, for defendant.

Nash, C. J.

This is a contest as to the administration on the estate of Alexander Clark, deceased. He resided, and died, in Harnett County, withoutissue, or a widow, and left a sister, the wife of Malcom Clark, living in that County, and nephews and nieces, residing in Scotland, the children of a deceased sister. In the County of Harnett, application was made by the present defendant for the administration, as the appointee of Malcom Clark and wife.» John McDougald also applied in his own right, as a- 'relative of the deceased. The Court granted the administration to McDougald, and the present defendant appealed to the Superior Court. At the Term to which the appeal was returned, McDougald withdrew from the contest; McCormick again applied, as the appointee of Clark and wife, and the plaintiff intervened, as the appointee of the next of kin in Scotland. The Court appointed the plaintiff administrator, and the defendant appealed.

Since the statute of distributions, it is of little importance to. whom the administration of a deceased person’s estate is granted, provided he is one of the classes designated in that Act, and is a fit person, and gives the necessary security as required by law; the object of the law being to have the estate taken care of. The Act of the Legislature upon the subject of granting letters of administration, must be familiar to every lawyer, and need not here be repeated in his vei'bis. It is sufficient to say, that it gives the administration to the widow or next of kin, or to the highest creditor when no one of the two previous classes apply. The contest here is between the next of kin who stand in equal degree to the deceased, but not in equal propinquity ; and when that is the case, it is a matter of discretion in the Court whom to appoint. The next of kin have, individually, no absolute vested right; Stoker v. Kendall, Busb. Rep. 242. Each of the contesting parties had a qualified right to the administration, as this right follows the right of property.- I say the parties, because the applicants are the appointees of the respective parties, and derive their light to intervene, entirely through their appointments. 1 Hagg. 342 ; Iredell’s Exr. 322. Tire County Court, in appointing McDougald administrator, was exercising a discretionary power, from .which no appeal would have laid, but for the express provision in the Act; Rev. Code, ch. 4, sec. 2. The appeal was properly granted. In the Superior Court, McDougald withdrew, and the neices and nephews in Scotland intervened through their appointee, the present plaintiff.

The parties were changed in the Superior Court. Does that work any difference in the progress of the cause, as to the power of the Superior Court to proceed ? None whatever. In a contest like this, there are properly no plaintiffs; no defendants. All are actors; all occupy before the Court the attitude of applicants. The Act of 1777 provides that, after the appeal is taken, the Superior Court shall have cognizance thereof, and shall grant letters of administration to the persons entitled to the same. Upon the appeal, the Superior Court acquired jurisdiction of the subject generally. The whole case was before it exactly as it, was in the County Court. Nor is the Court confined, in their selection of an administrator, to the persons who were parties on the record below, but is at liberty to select any other person coming within the Act of Assembly. Blunt v. Moore, 1 Dev. and Bat. Rep. 10.

We have not taken into consideration the question raised, as to Mrs. Clark’s j>ower to appoint, her husband being alive, but- incompetent to act. It is not necessary to do so, as the ' Superior Court did not grant letters to McCormick, her appointee.

We see no error in the judgment of the Court below.

Pee CuexaM. Judgment affirmed.