In Re Pitchi's Estate

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57 S.E.2d 649 (1950)

231 N.C. 485


No. 94.

Supreme Court of North Carolina.

March 1, 1950.

*651 Connor, Gardner & Connor, Wilson, for petitioner-appellant.

Charles B. McLean and F. L. Carr, Wilson, for respondent-appellee.

BARNHILL, Justice.

The orderly administration of the estates of decedents is a necessary incident to the devolution of property by inheritance or under testamentary devise. Such administration is a matter of public interest and is regulated by law. Under our statute jurisdiction is vested in the clerk of the Superior Court acting as probate judge. When so acting, his court, in respect to probate matters, is a court of general jurisdiction.

His jurisdiction is invoked by application or petition by some person entitled to qualify as administrator or executor, G.S. § 28-6, in which the requisite jurisdictional facts, G.S. § 28-1, are made to appear. Batchelor v. Overton, 158 N.C. 395, 74 S.E. 20; Holmes v. Wharton, 194 N.C. 470, 140 S.E. 93; Brooks v. Clement Co., 201 N.C. 768, 161 S.E. 403.

While the administrator is required to give bond for the faithful performance of the trust reposed in him, G.S. § 28-34, the authority of the probate judge to appoint does not rest on the bond. That is merely a question going to the manner of qualifying under the appointment. 21 A.J. 449, sec. 126.

"The giving of the bond, though required, is not essential to the efficacy of the act of appointment itself." Howerton v. Sexton, 104 N.C. 75, 110 S.E. 148, 152; In re Wiltsey's Will, 135 Iowa 430, 109 N.W. 776; Beresford v. Coal Co., 124 Iowa 34, 98 N.W. 902, 70 L.R.A. 256; Leatherwood v. Sullivan, 81 Ala. 458, 11 So. 718; 21 A.J. 449, sec. 126; 33 C.J.S., Executors and Administrators, p. 988, § 67; 2 Amer. Law of Administration 836, sec. 253.

When the appointment has been made and letters of administration have been issued, the letters are valid. "The failure to give a bond or the giving of an insufficient bond is only an irregularity, in no way affecting the validity of the appointment". Batchelor v. Overton, supra [158 N.C. 395, 74 S.E. 21]; Hughes v. Hodges, 94 N.C. 56.

The irregularity makes the letters of administration voidable onlya condition which may be cured by full compliance with the statute. In re Wiltsey's Will, supra. The conclusion that this is true is implicit in the uniform decisions in this and other jurisdictions to the effect that such letters once issued are not subject to collateral attack, Batchelor v. Overton, supra, Tyer v. J. B. Blades Lumber Co., 188 N.C. 274, 124 S.E. 306, Brooks v. Clement Co., supra, for a void order or decree is coram non judice and may be attacked whenever and wherever it is asserted, City of Monroe v. Niven, 221 N.C. 362, 20 S.E.2d 311.

Of course the issuance of letters of administration without first requiring a good and sufficient bond is a serious irregularity. Whenever such inadvertence is called to the attention of the clerk he should promptly demand bond, in default of which he should recall and revoke the letters of administration. In the meantime, his official bond is liable for any devastavit occurring prior to the filing of a bond. Plemmons v. R. R., 140 N.C. 286, 52 S.E. 953.

Here a bond with sufficient surety has been tendered to and accepted and approved by the clerk. As the only asset of the estate is the claim for damages for wrongful death, the bond, for the time being, is sufficient in amount. Upon a recovery in the pending suit the clerk may and should require additional bond commensurate with the amount of recovery. In the meantime the respondent is fully authorized to act as administrator of his intestate's estate.

In re Will of Winborne, N.C., 57 S.E.2d 795, is clearly distinguishable. In an administration, compliance with the statute in respect to bond is procedural while in a caveat proceeding it is jurisdictional. In an administration, jurisdiction is invoked by an application for the appointment of an executor or administrator. In a caveat proceeding authority to act vests *652 in the clerk only "when a caveator shall have given bond" or otherwise complied with the statute in respect thereto.

For the reasons stated the judgment below is