Harrison v. Carter
| Decision Date | 31 January 1946 |
| Docket Number | No. 596.,596. |
| Citation | 36 S.E.2d 700,226 N.C. 36 |
| Parties | HARRISON. v. CARTER. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Moore County; H. Hoyle Sink, Judge.
Action by Howard R. Harrison, administrator of the estate of Mae Gallatin Eby, deceased, against Faulk Carter, for wrongful death of plaintiff's decedent. Howard R. Harrison, administrator cum testamento annexo, de bonis non filed a motion to be permitted to enter the action as plaintiff. From judgment dismissing the action following denial of the motion, Howard R. Harrison, administrator cum testamento annexo, de bonis non, appeals.
Reversed.
Civil action for wrongful death.
1. Mae Gallatin Eby, a citizen of Dauphin County, Pa., died in Moore County, annexo, de bonis non, filed a motion to be Hill Hotel at Aberdeen, N.C., owned by defendant, Faulk Carter, was burned. The deceased was a guest of the hotel at the time of her death, and plaintiff alleges that her death was caused by the negligence of the defendant.
2. On January 22, 1943, Howard R. Harrison, a citizen of Moore County, N. C, was duly appointed administrator of the estate of Mae Gallatin Eby, by the Clerk of the Superior Court of Moore County, and gave bond as required by law, and forthwith on January 22, 1943, said administrator instituted this action against the defendant for the wrongful death of his intestate, Mae Gallatin Eby. The summons and verified complaint were served on the defendant. Answer was filed. An amended complaint and an amended answer were filed.
3. Thereafter, about May 29, 1944, it was discovered that Mae Gallatin Eby left a will, which had been duly probated in Dauphin County, State of Pennsylvania, on June 30, 1942. An exemplified copy of the will was filed in the office of the Clerk of the Superior Court of Moore County, N. C, and duly recorded in the Book of Wills.
4. On August 22, 1944, the Clerk of the Superior Court of Moore County, N. C, on motion of the defendant in this action, entered an order revoking the letters of administration issued to Howard R. Harrison on January 22, 1943, and ordered Howard R. Harrison to appear before said Clerk on September 5, 1944, at 3 o'clock p. m., and show cause, if any, why the order of revocation should not remain in full force and effect. On the same day, August 22, 1944, the Clerk appointed E. J. Burns administrator c.t.a., of the estate of Mae Gallatin Eby, and issued such letters of administration to him.
5. The hearing on the motion to show cause was held at the request of Howard R. Harrison, on September 6, 1944, all parties being present and represented by their respective attorneys. Whereupon, the Clerk entered an order to the effect that the former order entered August 22, 1944, shall remain in full force and effect, and that the letters of administration on the estate of Mae Gallatin Eby heretofore issued to the said Howard R. Harrison shall be and remain recalled and revoked, and that the letters of administration c.t.a., on the estate of the said Mae Gallatin Eby, deceased, issued to E. J. Burns, remain in full force and effect.
6. E. J. Burns, as administrator c.t.a., of the aforesaid estate, filed his resignation with the Clerk of the Superior Court of Moore County on September 9, 1944, and accordingly the Clerk accepted the resignation. E. J. Burns made no reports, and took no action looking to the prosecution of this action against the defendant. In his letter of resignation to the Clerk, he stated he was a stranger to the matter and that Ben Eby, the sole beneficiary under the will, had requested that his personal friend, Howard R. Harrison, be appointed administrator c.t.a., of the estate, and he requested the appointment of Harrison as such administrator, which request was also made to the Clerk in writing by the said Ben Eby. Whereupon, Howard R. Harrison was appointed as administrator c.t.a, d.b.n., of the estate of Mae Gallatin Eby, deceased, accepted the appointment, and duly qualified as such administrator, and such letters of administration were issued on the -- day of September, 1944.
7. On September 20, 1944, Howard R. Harrison, administrator c.t.a., d.b.n., filed a motion praying that he be permitted to enter this action as plaintiff, reciting the fact that as administrator without the will annexed he had begun the action and brought the suit in good faith and that under the law he should be and act as plaintiff and prosecute said action, as will appear from the records on file in this Court.
The Clerk held that since E. J. Burns was not appointed administrator c.t.a., of the estate of Mae Gallatin Eby until after the expiration of more than twelve months from the death of Mae Gallatin Eby, and Howard R. Harrison was not appointed administrator c.t.a., d.b.n., until after the resignation of E. J. Burns, as administrator c.t.a., this action cannot be maintained, and that Howard R. Harrison, administrator c.t.a., d.b.n., cannot legally be made a party to this action, and denied the motion and dismissed the action. On appeal to the Superior Court, his Honor approved the order of the Clerk and confirmed it in all respects. From judgment so entered, Howard R. Harrison, administrator c.t.a., d.b.n., appeals to the Supreme Court.
Douglass & Douglass, of Raleigh, and Seawell & Seawell, of Carthage, for plaintiff.
Sharp & Sharp, of Reidsville, U. L. Spence, of Carthage, and Varser, McIntyre & Henry, of Lumberton, for defendant.
The sole question for our determination on this appeal is whether or not Howard R. Harrison, administrator c.t.a., d.b.n., of Mae Gallatin Eby, deceased, has the legal right to be made the plaintiff in this action and to prosecute the same.
This identical question does not seem to have been passed upon heretofore by this Court. Nevertheless we think the Court below did err in signing the judgment denying the motion of Howard R. Harrison, administrator c.t.a., d.b.n., of Mae Gallatin Eby, deceased, to be substituted as plaintiff in the action.
This action, for the wrongful death of Mae Gallatin Eby, was duly and properly instituted by the administrator of the decedent's estate within one year after such death, as required by G.S. § 28-173.
The appellee contends that upon the facts in this case, the Court is without power to convert the pending action, that cannot be maintained, into a new one by admitting a new party plaintiff, citing Merrill v. Merrill, 92 N.C. 657; Clendenin v. Turner, 96 N.C. 416, 2 S.E. 51; Best v. Town of Kinston, 106 N.C. 205, 10 S.E. 997; Hall v. Southern R. Co., 146 N.C 345, 59 S.E. 879; Gulledge v. Seaboard Air Line R. Co., 147 N.C. 234, 60 S.E. 1134, 125 Am.St.Rep. 544; Id., 148 N.C. 567, 62 S.E. 732; Hall v. Southern R. Co. 149 N.C. 108, 62 S.E. 899; Bennett v. North Carolina R. Co., 159 N.C. 345, 74 S.E. 883; J. H. Hood, Adm'r v. Amer. Tel. & Tel. Co, 162 N.C. 92, 77 S.E. 1094; Reynolds v. Lloyd Cotton Mills, 177 N.C. 412, 99 S.E. 240, 5 A.L.R. 284. We do not concede that the pending action cannot be maintained. Moreover, each of the above cited cases is distinguishable from the one here presented. It will be observed upon examination of the above authorities, that either a new cause of action was involved or the original action was instituted by a party without legal authority to institute it. That is not the situation here. This action was brought by an administrator legally appointed by the probate court having exclusive jurisdiction of the subject matter. Moreover, pending the appointment and qualification of an administrator or the probate and filing of a will, a collector may be appointed in order that an action for wrongful death may be instituted within the statutory time. G.S. 28-25; In re Palmer's Will, 117 N.C. 133, 23 S.E. 104; Gulledge v. Seaboard Air Line R. Co, supra.
It is provided by statute in this State, that whenever letters of administration have been issued and a will is subsequently probated and letters issued thereon, the letters of administration must be revoked. G.S. § 28-31. This same statute, however, provides that all acts by the administrator, done in good faith, are valid. Shober v. Wheeler, 144 N.C. 403, 57 S.E. 152.
The acts of administration done prior to the discovery and probate of a will, in the due course of administration, "are binding on the parties...
To continue reading
Request your trial