Wallis v. Wallis, 60 N.C. 78, 1 Win. 78 (1863)

June 1863 · Supreme Court of North Carolina

60 N.C. 78, 1 Win. 78

SYLVIA CAROLINE WALLIS v. LOUISA A. WALLIS.

A widow, under twenty-one years of age, cannot be appointed an adminis-tratrix. But the Court may appoint an administrator during her minority, and on her arriving at full ago, grant her the administration. Qr, it may give the office to her appointee.

On an appeal to the Superior Court, from a grant of administration, it is not proper in that court, on the reversal of the order below, itself to make the appointment, but to order a procedendo to the County Court.

Appeal from an order of the County Court, appointing an administrator, tried before Bailey, J., at tbe Pall Term, 1860, of Onslow Superior Court.

Tbe plaintiff, as-the widow of James GL "Wallis, was appointed by the county court of Onslow, administratrix. ’ It appeared that at the time of this appointment, she was only about seventeen years old. The defendant, who is the mother of the intestate, opposed the motion in the court below, on tbe ground that the plaintiff was under age, and on the further ground, that she, (defendant,) was the greatest creditor of the intestate, and appealed from the judgment.

The Superior Court reversed the judgment below. A motion was then made to grant letters to the appointee of the plaintiff, which was allowed by his Honor, and the"defendant appealed.

McRae, for the plaintiff.

Donnell and HtmwpJvrey, for the defendant.

PeabsoN, O. J.

Wo concur with his Honor in the opinion that the County Court erred in granting letters -of administration to Caroline Wallis, the widow of the intestate. As widow, she was entitled to the administration, but the Court could not grant it to her until she arrived at the age of twenty-one years, for the law presumes that before that age, she is not capable of discharging the duties of administratrix.

She did not, however, on that account lose her right, and, in order to preserve it, the Court might have granted letters of administration to some other person, d/wrante minoritate^ so that when she arrived at full age, the general administration could be granted to her. Or the Court might have granted the administration to such person as she should appoint; Ritchie v. McAuslin, 1 Hayw. 220; Pearce v. Castrix, 8 Jones 73.

In'the Superior Court, his Honor decided correctly that the appointee' was entitled to the administration; but he erred in granting the administration, instead of directing ‘a,procedendo to the county court. This was d one in Pearce v. Castrix, supra, as we find by a reference to the record, although it is not set out by the reporter, and such has been the practice since the adoption of the “ Eévised Statutes.” The county court has a peculiar jurisdiction in |he probate of .wills and granting letters of administration. It is substituted for the Court of Ordinary in England. The original will is to be filed there— the returns are to be made there by executors and administrators, and the settlement of estates is to be made there.

We presume his Honor was misled by the case of Blunt v. Moore, 1 Dev. and Bat. 10. That case was decided under the acts of 1777; Laws of North Carolina, ch. 115, sec 58, which directs the Superior Court,' in case of appeals, to grant letters of administration. That provision is omitted in the Revised Statutes, and also in the Revised Code; see ch. 46, sections 1, 2, 8, chapter 4. sec. 2, chap. 31, sec. 17, from which it is evident that the letters of administration are now to be granted by the county courts, and, in cases of appeal, after deciding who is entitled to administration, the superior court should order & procedendo. Eor the error, in, this respect, the judgment is reversed.

Pee, CubiaM, Judgment reversed.