Springs v. Erwin

• Decision Date: 31 December 1845
• Citation: 28 N.C. 27,6 Ired. 27
• Parties: LEROY SPRINGS v. BAKER ERWIN.
• Court: North Carolina Supreme Court

6 Ired. 27

28 N.C. 27

LEROY SPRINGS

v.BAKER ERWIN.

Supreme Court of North Carolina.

December Term, 1845.

The County Court has no right to appoint an Administrator with the Will annexed, when there is an Executor, laboring under no disability, until the renunciation of the Executor, and such renunciation must appear of record.

Such an appointment is not merely voidable; it is absolutely void.

The cases of Slade v. Washburn, 1 Ired. 561 and Mitchell v. Adams, 1 Ired. 302, cited and approved.

Appeal from the Superior Court of Law of Mecklenburg County, at the Fall Term, 1845, his Honor Judge PEARSON presiding.

This case, which was an action of Detinue for a negro named Moses, was as follows. A man by the name of Flinn died in the year 1840, having duly made and published in writing his last will and testament, in which one Williamson was appointed Executor. At the May term, 1840, of Mecklenburg Court of Pleas and Quarter Sessions this was duly proved, and at the October term of said Court in the same year, administration, with the will annexed, was granted to the plaintiff. The letters set forth the death of Flinn and his leaving a will. Immediately upon the death of Flinn, Williamson, the Executor, took into his possession the stock and farming utensils of his testator, and sold them at public auction, before the term at which the will was proved. The letters of administration did not show, that Williamson, the Executor, ever had renounced his right to execute the will, nor did the record of the County Court, which is made a part of the case, so state. But parol evidence was offered by the plaintiff to show, that he was at Court during the session of October, at which the administration was granted, and that he did actually renounce his right, though it did not appear upon the record. This testimony was objected to by the defendant, but was received by the Court, subject to the objection.

No more of the case is stated than is necessary to show the ground upon which the Supreme Court proceeds in its judgment. The defendant objected, that the plaintiff could not maintain his action, because his appointment as administrator with the will annexed was absolutely void. His Honor, who tried the case, was of opinion that the plaintiff's appointment as administrator with the will annexed, being a special administration, was not void but voidable, and, until repealed by the proper authority, invested the plaintiff with all the rights and powers of such an administrator. The jury found a verdict for the plaintiff, and the defendant appealed.

Osborne and Boyden, for the plaintiff .

Alexander, for the defendant .

NASH, J.

In the opinion of this Court, the presiding Judge erred in deciding that the letters of administration granted to the plaintiff are merely voidable; we consider them void. We so believe, for the reason that while the facts remained as they were, when the Court acted, the latter had no legal power to grant any species of administration upon the estate of Flinn; the case was not within their jurisdiction. The executor to a will, labouring under no disability, alone has the power and authority to administer the assets of the testator. If he be a minor or a lunatic, or beyond the jurisdiction of the Court, the latter may appoint a temporary administrator, but not a general one. The powers of the one are essentially different from those of the other, and if the latter be granted in such a case, the letters are void. In the language of the Court in the case of Slade against Washbourn, 3d Ire. 562, they are a nullity. There the letters were declared void, because they were general and were granted during a contest on the probate of the will. In the case now before us, the letters of administration recite the existence of the...