Taylor v. Biddle, 71 N.C. 1 (1874)

June 1874 · Supreme Court of North Carolina

71 N.C. 1

WM. P. TAYLOR, Adm’r. de bonis non, &c., v. HARRIET O. BIDDLE and others.

Judges of Probate in our State are by Art. IV, Sec. 17, of the Constitution, vested with the general jurisdiction and powers of the Ordinary, at common law, and with such other additional powers as are conferred by our statutes; of which the power to remove any administrator for failing to discharge the duties of his office, prescribe by law, is one.

The powers of our Courts of Probate, both as to jurisdiction and as to practice and procedure, extend equally to administrations granted prior and subsequent to the 1st day of July, 1869; and letters of administration may be granted to a public administrator subsequent to 1st July, 1869, although the original administration was prior to that date.

(Bat. Eev. chap. 45, sec. 58 commented on and construed.)

Special Peoceedieg, to sell real estate for assets, filed in the Probate Court of Cabteeet county, and thence carried by appeal before Clarice, J., and heard at Chambers January 2d,, 1874

The petition, praying the sale of six acres of land situate near the town of Beaufort, belonging to the estate of the late Jos. B. Outlaw, was filed June 8th, 1870, and regularly served on the defendants, interested as heirs at law. On the 2d of January, 1871, a decree of sale was obtained. January 16th, 1872, Wm. Gf. Brinson, public administrator of Craven county, files ■the following record of the Probate Court of Craven county^ to wit:

•“ State of North Caroliha, ) Peobate Court,

Craven County, f Newbern, July 20th, 1870.

In the matter of Wm. P. Mitchell, administrator of Joseph •Outlaw.

William P. Mitchell, administrator of Joseph B. Outlaw, ¡having failed to renew his bond and render his annual account, at the time required by law, after service of notice to do so upon him; on motion, it is ordered and adjudged, that the said William P. Mitchell be removed as administrator of the said Joseph B. Outlaw, and that his letters of administration be revoked.

It is further ordered, that letters of administration be issued to William Gf. Brinson, public administrator, and said estate is hereby placed in his hands.

I. E. WEST, Probate Judge.”

Whereupon, the said public administrator was made a party to this proceeding. And under the foregoing order of the Probate Court'of Craven, he, the public administrator of that ■county, claims the right to represent the estate of Joseph B. Outlaw in the future proceedings in this case.

To this Mitchell, the petitioner, replies :

1. That he has not been removed from the office of administrator de bonis non, with the will annexed of Joseph B. Outlaw, deceased, as sec. 89 et seg. of chap. 113, laws of 1868~’69 ■have not been complied with in any particular; and that he is •still the administrator, &c.; but if he had been removed, that

2. The public administrator of Craven county, as such, has not and cannot under any circumstances, have jurisdiction, and no Court can give him jurisdiction in this, or any like case. That there are but three cases pointed out in the law, where he can get letters of administration, and that this case is not one of these. Laws of 1868-’69, chap. 113, secs. 6 and 92. Further, the public administrator, as such, cannot have jurisdiction of an estate, where original administration was granted prior to July 1st, 1869.

For the public administrator, it was insisted in • answer to this, that the petitioner has been removed and he, himself, appointed in his place, by the only Court having jurisdiction of the matter, and that this Court, (the Probate Court of Car-teret,) is bound to. give full faith and credit to its properly authenticated record.

In February, 1872, the petitioner reported that in accordance with a former order of the Court, he had sold the land for $87.50, which was well secured, and that the sum was a reasonable price for the same. The Probate Judge, not recognizing the public administrator of Craven as the legal, representative of Joseph B. Outlaw, confirmed the report of the petitioner, Mitchell, from which order Brinson, the public administrator, appealed to the Judge of the Third District.

His Honor, Judge Clarke, upon a full consideration of the case, was of opinion that the Probate Judge of Craven had original jurisdiction of the case, and had authority under the law to remove the administrator for adequate cause ; and that in the case presented, the public administrator of Craven was the true and proper representative of the testator, Joseph B. Outlaw. From this judgment, the petitioner, the present plaintiff, appealed.

Smith (& Strong, for appellant, submitted:

That the only question in the case is as to the right of W. €r. Brinson, the public administrator, to displace, and to substitute for Mitchell, the plaintiff.

I.The removal was improper:

1. It was- not a case within the provisions of Battle’s Revisal,.

ch. 45, secs, 140, 141 and 142. '

2. There should have been a citation or other proceeding, bringing the plaintiff before the Probate Court, and giving' him opportunity to show cause. Williams Executors, 317.

3. The right to remove, given in O. C. P., 470, does not dispense with those proceedings giving, the party a day in Court.

II. The public administrator is entitled to letters of administration only in the three cases enumerated in Battle’s Revisal, ch, 45, sec. 22.

III. The entire law in reference to appointment of public administrators, does not apply to administration prior to July 1, 1869. The petition shows that the administration was granted in December, 1867. Acts oí 1869-70, ch. 58, sec. 1. (Batt. Rev., ch. 45, sec. 58.)

The judgment of the Superior Court was therefore erroneous'.

Justice and Hubbard, contra, argued.

As to the jurisdiction and power of the Probate Judge to’ remove the administrator Mitchell, see C. O. P., sec. 479.

If Mitchell had been removed, the Court had power to appoint some other person- to succeed him in the administration of the estate. Chap. 113-, sec. 92, laws ’of 1868-69, sec. 6 ebap, 113) laws 1868-6%.applies only where there has been no administration upon an estate.

In our case an administaator has been, removed.and another appointed to succeed him.

Mitchell the plaintiff has had his day in Court. See the ' transcript of the record of the Probate Court of Craven county in the statement of the case. Brinson has been, made party as the case shows.

Byhum, J.

At the common law, the Ordinary could repeal an administration at pleasure, but now, by statute, it cannot be revoted, except for just cause. 1 Williams on Executors, 509.

The. Judge of Probate here, by Art. IV, sec. 17, of the Constitution, is vested with the general jurisdiction and powers of the Ordinary, and with such additional powers as are conferred by our statutes. These statutory powers are contained in Bat. Rev. chap. 45, sec. 25, and chap. 119, sec. 36-’7-’S, and are in affirmance and enlargement of the common law jurisdiction, and are decisive of this ease. These sections of the Revisal, taken together, elearlv confer upon the clerk the power of removal for the failure of the administrator to discharge the duties of his office as prescribed by law. But without invoking the aid of our statutes, the power of removal is inherent in the office at eommon law, and must of necessity be so, to prevent a failure of j ustiee. So whether we look to our statutes or outside of them, the Judge of Probate, in the order vacating the administration of Mitchell, after notice served and a day in court, acted within the scope of his jurisdiction and powers. The order of revocation, therefore, cannot be void, and if voidable for irregularity it cannot’be impeached, in this collateral way, but only by a direct proceeding for that purpose before the Probate Judge of Craven eonnty, where the letters were granted. ’

It is, however, contended that this administration, having been originally granted prior to the adoption of the Constitution, and the legislation of 1868, changing the law for the settlement of estates, (chap. 45, Bat. Rev ,) is to be governed by the laws existing prior to July 1st, 1869, the time when chap. 45, Bat. Rev., went into effect. And inasmuch as no statute then existed, creating the office of public administrator, or providing for the removal of an administrator in the manner it was exercised in this case, the Judge of Probate had no power of removing Mitchell, or of appointing the public adnainistaatoa’as his successor.

The answer to these propositions depends upon the proper constinciion of chap. 45, Bat. Rev. As this chapter repeals chap. 46, Eev. Code, entitled “ Executors and Administrators,”' its provisions must govern this case, both as to the removal and appointment of administrators, otherwise we have no statute law applicable to original administrations granted prior to July, 18.69, which, is our case. It is perfectly clear from see. 58 of this chapter, declaratory of the estates to which it applies, and the proviso therein that both as to jurisdiction and as to practice and procedure, the powers of the Court of Probate extend equally to. administrations granted prior and subsequent to the first of July, 1869. It follows that the Probate _Court can grant administration to a public administrator, subsequent to the first of July, 1869, although the original administration was prior to that date; But when lie does administer he is-to be governed,, in the settlement of the estate, by the laws which, were in force immediately preceding the first day of July, 1869.

So,, from the record before us, it appears that Mitchell was removed and Brinson appointed as administrator de 'bonis.non> &c., of the estate of Jos. B. Outlaw. The motion of the de,-.fendant, Brinson, to be substituted in the proceedings as plaintiff in the stead of Mitchell, should have been allowed by the. Judge of Probate of Carteret. There is no error in the judgment of his Honor reversing the order of the Court of Probate.

This will be certified, to the end that further proceedings b© had according to law.

Pee CuetaM. Judgment affirmed.