Williams v. Neville
| Decision Date | 19 May 1891 |
| Citation | 13 S.E. 240,108 N.C. 559 |
| Parties | Williams v. Neville et al. |
| Court | North Carolina Supreme Court |
Appeal from an order of Boykin, J., overruling an order previously made by Lassiter, clerk of the superior court of Granville county, refusing to remove a creditor who had been appointed administrator, and appoint a person designated by the next of kin of the decedent. The order of the clerk appealed from was as follows: etc.
Where a person having a right to administer has not renounced or otherwise lost it, it is error to refuse her application to remove an administrator already appointed.
Battle & Mordecai, N. V. Lanier, and N. B. Cannady, for appellants.
Batchelor & Devereux, for appellee.
It is conceded that Candace Williams, being the only sister of the decedent, who left neither husband, child, nor brother her surviving, had the right to administer within six months after her sister's death. She had also the right within that time to select and recommend such person as she might prefer, if she did not wish to administer herself; and, if her nominee was suitable in character, habits, and intellect, to demand his appointment. Little v. Berry, 94 N.C. 433; Ritchie v. McAuslin, 1 Hayw. 220: Pearce v. Castrix, 8 Jones, (N. C.) 71; Wallis v. Wallis, Winst. Eq. 78; Schouler, Ex'rs, § 113. Emily Knight died in Granville county on the 8th day of May, 1890. On the 14th of June, 1890, the clerk of the superior court of Granville county granted letters of administration to the defendant, Alonzo Neville, who was the largest creditor. Candace Williams had not filed any paper renouncing her right as next of kin to administer, but the defendant had visited her at her home in Franklin county, after the death of her sister and before the said 14th of June, and in a conversation then had with her she had declared to him "that she would not have anything to do with and would not administer upon" the estate of the decedent. Code, § 1378, provides that "when any person applies for administration, and any other person has a prior right thereto, a written renunciation of the person or persons having such prior right must be produced and filed with the clerk." It is manifest, therefore, that the language used by the plaintiff in conversation did not, in contemplation of law, amount to a renunciation. In Hill v. Alspaugh, 72 N.C. 404, the court, construing sections 6, 7, and 8 of Battle's Revisal, (Code, §§ 1378-1380,) said: "We think the true intent and meaning of the statute is that the persons primarily entitled to administration shall assert their right and comply with the law within six months after the death of the intestate, and that a party interested, wishing to quicken their diligence within that time, must do so by citation, as prescribed by statute; or if a person, not preferred, applies for administration within six months, he must produce the written renunciation of the person or persons having prior right." It was only after the lapse of six months that the clerk had the right to appoint the "most competent creditor," when plaintiff had neither renounced in writing nor applied for letters for herself or some suitable person selected by her. After the expiration of thirty days, (after June 8, 1890,) the defendant might have applied to the clerk to issue a citation to the plaintiff to show cause why she should not be decreed to have renounced. It was his own folly if, instead of pursuing the course plainly pointed out by the law, he applied for and obtained letters of administration at the expiration of only 36 days after the death of Emily Knight. It was in his power to compel her to renounce or actively assert her right within 20 days. In the absence of such citation, the law gave the plaintiff six months to deliberate and determine whether she would apply for letters of administration to be issued either to herself or her appointee. The appointment of Neville having been made contrary to law, the clerk ought first to have revoked the letters illegally issued to him, upon the motion of the person entitled to administer or to nominate, and then to have allowed a reasonable time for her or her appointee to qualify. Hughes v. Pipkin, Phil. (N. C.) 4. If the plaintiff, in answer to a citation issued in the manner indicated by the law, had claimed the right for herself or another, and the person named by her had been appointed by the court, and had failed or refused within a reasonable time to qualify, then, though the six months had not expired, the clerk would have been authorized by law to appoint another. Stoker v. Kendall, Busb. 242.
On the 8th day of September, 1890, Candace Williams wrote a letter to the clerk, (R. W. Lassiter,) stating that she claimed her right to administer within six months (four months only having then expired) from the death of her sister; that she had given that privilege to J. S. Timberlake, and wished him to revoke the letters of administration, which, as he had ascertained from reading or advertisement, had been granted to the defendant. She insisted also that, as the larger part of the property was in Franklin county, letters ought to be granted by the clerk of the superior court of that county. On the same day (September 8th) J. S. Timberlake also wrote to R. W. Lassiter, clerk, that at the request of plaintiff he had consented to administer on the estate of her sister, Mrs Knight, and would administer within six months, as he claimed a right to do, but, as the most of her estate was in Franklin county, he expected to administer there. It was evident that J. S. Timberlake had advised her, upon such information as he had, that the clerk of the superior court of Franklin county alone had jurisdiction; whereas, in fact, the court of Granville had acquired sole jurisdiction by...
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