The court, being of opinion, upon this finding of facts and the record, that the action of the clerk of the Superior Court of (548) Buncombe County in issuing to the respondents the general letters of administration as in cases of intestacy was void for want of jurisdiction, affirmed the order of the clerk revoking such appointment, to which the respondents excepted and appealed. A husband has a right to administer the estate of his deceased wife, both in the event of her death intestate (The Code, sec. 1376) and also in the event that she leaves a will, but names no one as executor. The Code, sec. 2166.
The script which has been propounded as the will of Mrs. Sarah Ellick Meyers does not appoint any one to execute it. Therefore, if it be found, upon the trial of the issue devisavit vel non, that it is the will, that cannot have the effect of depriving her husband of the right to administer the estate. Hence, while it is true that there is a contest pending, there is no controversy in regard to the right of administration. Nor can there be one. The statutory provisions are plain. Little v. Berry, 94 N.C. 433.
It has been decided by this Court that one who has the prior right to administration may transfer that right by appointment. Little v. Berry,supra.
If the husband could have lawfully transferred his right to administer his wife's estate to another, he may certainly cause another to be associated with him in the administration. If it was proper to appoint the husband, it was proper to appoint the husband and his chosen associate, Webb, to be coadministrator.
From what has been said, it follows that the husband's right to letters of administration, and the clerk's power and duty to (549) appoint him and his chosen associate to be coadministrator, were not at all affected by the filing and probating in common form of the script which purported to be the will of Mrs. Meyers, for, as has been noted, that instrument named no one to administer the estate under its *Page 402 provisions. Suttle v. Turner, 53 N.C. 403, is overruled in Little v.Berry, 94 N.C. 433. The duties and responsibilities of these administrators are not in any degree changed by the fact that a will has been or may be probated that will guide them in their distribution of the assets that remain after payment of debts and charges of administration. They must take notice of that. The clerk has power to issue orders touching the administration, and they must obey. If they are guilty of misconduct, they may be removed.
But they should not have been ousted by the clerk for the reasons set out in the petition upon which his order of removal was founded.
His Honor should have directed the clerk to revoke his order of removal. It is so ordered.
Error.
Cited: Boynton v. Heartt, 158 N.C. 491; In re Shufford, 164 N.C. 135.