Denny, J.
Tbe sole question for our determination on tbis appeal is whether or not Howard R. Harrison, administrator
c. t. a., d. b. n.,
of Mae Gallatin Eby, deceased, has tbe legal right to be made tbe plaintiff in tbis action and to prosecute tbe same.
Tbis identical question does not seem to have been passed upon heretofore by tbis Court. Nevertheless we think tbe court below did err in signing tbe judgment denying tbe motion of Howard R. Harrison, administrator
c. i. a., d. b. n.,
of Mae Gallatin Eby, deceased, to be substituted as plaintiff in tbe action.
Tbis action, for tbe wrongful death of Mae Gallatin Eby was duly and properly instituted by tbe administrator of tbe decedent’s estate witbin one year after sucb death, as required by G. S., 28-173.
Tbe appellee contends tbat upon tbe facts in tbis case, tbe Court is without power to convert tbe pending action, tbat 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;
Best v. Kinston,
106 N. C., 205, 10 S. E., 997;
Hall v. R. R.,
146 N. C., 345, 59 S. E., 879;
Gulledge v. R. R.,
147 N. C., 234, 60 S. E., 1134;
S. c.,
148 N. C., 568, 62 S. E., 732;
Hall v. R. R.,
149 N. C., 108, 62 S. E., 899;
Bennett v. R. R.
159 N. C., 345, 74 S. E., 883;
J. H. Hood, Admr., v. Amer. Tel. & Tel. Co.,
162 N. C., 92, 77 S. E., 1094;
Reynolds v. Cotton Mills,
177 N. C., 412, 99 S. E., 240. We do not concede tbat tbe pending action cannot be maintained. Moreover, each of tbe above cited eases is distinguishable from tbe one here presented. It will be observed upon examination of tbe above authorities, tbat either a new cause of action was involved or tbe original action was instituted by a party without legal authority to institute it. Tbat is not tbe situation here. Tbis action was brought by an administrator legally appointed by tbe probate court having exclusive jurisdiction of the subject matter. Moreover, pending tbe appointment and qualification of an administrator or tbe probate and filing of a will, a collector may be appointed in order tbat an action for wrongful death may be instituted within tbe statutory time. G. S., 28-25;
In re Palmer’s Will,
117 N. C., 133, 23 S. E., 104;
Gulledge v. R. R., supra.
It is provided by statute in tbis State, tbat whenever letters of administration have been issued and a will is subsequently probated and letters issued thereon, tbe letters of administration must be revoked. G. S., 28-31. Tbis same statute, however, provides tbat all acts by tbe administrator, done in good faith, are valid.
Shober v. Wheeler,
144 N. C., 403, 57 S. E., 152.
Tbe acts of administration done prior to tbe discovery and probate of a will, in the due course of administration, “are binding on the parties interested in tbe estate, including tbe executor in tbe will.” 21 Am. Jur., sec. 165, p. 466, citing numerous authorities. Furthermore, it is provided in G. S., 28-181, “In case tbe letters of administration of an executor, administrator or collector are revoked, pending an action to which be is a party, tbe adverse party may, notwithstanding, continue tbe action against him in order to charge him personally. If sucb party does not elect so to do, witbin six months after notice of sucb revocation, tbe action may be continued against the successor of tbe executor, administrator or collector in tbe administration of tbe estate, in tbe same manner as in case of death.” A cause of action which survives against
successor personal representatives of an estate likewise survives in favor of successor personal representatives of an estate. G. S., 28-172;
Suskin v. Trust Co.,
214 N. C., 347, 199 S. E., 276. And, where an action is brought to recover assets by “a general executor or administrator, who afterwards dies, resigns or is removed,” the action “may be revived in the name of his successor.” Schouler on Wills, Executors and Administrators, sixth edition, Vol. 3, sec. 2144. While any sum recovered for wrongful death is not a part of the assets of the decedent’s estate, nevertheless such sum can only be recovered in the name of decedent’s personal representative, and must be distributed under the laws of intestacy in this State. G. S., sections 28-173 and 28-176;
Neill v. Wilson,
146 N. C., 242, 59 S. E., 674;
Hines v. Foundation Co.,
196 N. C., 322, 145 S. E., 612;
Hanes v. Sou. Public Utilities Co.,
191 N. C., 13, 131 S. E., 402;
Pearson v. Stores Corp.,
219 N. C., 717, 14 S. E. (2d), 811.
Once a personal representative of an estate is duly appointed, if such representative dies, resigns or is removed, the law contemplates a continuity of succession until the estate has been fully administered; and upon the death, resignation or removal of a personal representative, who has properly brought an action for wrongful death, the action does not abate. G. S., 1-74. And G. S., 28-33, requires the clerk of the Superior Court, in all cases of revocation of letters, to appoint immediately some person to succeed in the administration of the estate. It is immaterial in so far as the continuity of the succession is concerned, whether the successor be an administrator
d. b. n.,
an executor, an administrator
c. t. a.,
an administrator
c. t. a., d. b. n.,
or a collector. The intent and purpose of the law relative to administration of estates is to protect and preserve the estate and all rights incident thereto. This is necessarily true because beneficiaries of estates must act through personal or legal representatives of the decedent’s estate, and such representatives in turn act under the supervision of probate courts. And while the right to bring an action for the benefit of an estate or the beneficiary thereof, is given by statute to the personal or legal representative of such estate; such representative, though a necessary, is, none the less, a formal or nominal party, acting in the capacity of a trustee or agent of the beneficiary of the estate. Sherman and Redfield on Negligence, Vol. 4, sec. 826, p. 1874;
Baker v. R. R.,
91 N. C., 308;
Broadnax v. Broadnax,
160 N. C., 432, 76 S. E., 216;
Avery v. Brantley,
191 N. C., 396, 131 S. E., 721.
Has the right of the appellant to prosecute this action been impaired because the defendant was the movent in obtaining the revocation of the original letters of administration and had a friendly administrator
c. t. a.
appointed as successor to the administrator, and who did not have himself made a party to the action? We do not think so. E. J. Burns held his letters as administrator
c. t. a.
of the estate for only 18 days, when
be resigned. It is clearly indicated by him in his resignation that he held his appointment merely as a straw man. He stated he was a stranger to the proceedings and had done nothing for or in behalf of the estate. He further stated that he was not the choice of the sole beneficiary under Mrs.
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Denny, J.
Tbe sole question for our determination on tbis appeal is whether or not Howard R. Harrison, administrator
c. t. a., d. b. n.,
of Mae Gallatin Eby, deceased, has tbe legal right to be made tbe plaintiff in tbis action and to prosecute tbe same.
Tbis identical question does not seem to have been passed upon heretofore by tbis Court. Nevertheless we think tbe court below did err in signing tbe judgment denying tbe motion of Howard R. Harrison, administrator
c. i. a., d. b. n.,
of Mae Gallatin Eby, deceased, to be substituted as plaintiff in tbe action.
Tbis action, for tbe wrongful death of Mae Gallatin Eby was duly and properly instituted by tbe administrator of tbe decedent’s estate witbin one year after sucb death, as required by G. S., 28-173.
Tbe appellee contends tbat upon tbe facts in tbis case, tbe Court is without power to convert tbe pending action, tbat 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;
Best v. Kinston,
106 N. C., 205, 10 S. E., 997;
Hall v. R. R.,
146 N. C., 345, 59 S. E., 879;
Gulledge v. R. R.,
147 N. C., 234, 60 S. E., 1134;
S. c.,
148 N. C., 568, 62 S. E., 732;
Hall v. R. R.,
149 N. C., 108, 62 S. E., 899;
Bennett v. R. R.
159 N. C., 345, 74 S. E., 883;
J. H. Hood, Admr., v. Amer. Tel. & Tel. Co.,
162 N. C., 92, 77 S. E., 1094;
Reynolds v. Cotton Mills,
177 N. C., 412, 99 S. E., 240. We do not concede tbat tbe pending action cannot be maintained. Moreover, each of tbe above cited eases is distinguishable from tbe one here presented. It will be observed upon examination of tbe above authorities, tbat either a new cause of action was involved or tbe original action was instituted by a party without legal authority to institute it. Tbat is not tbe situation here. Tbis action was brought by an administrator legally appointed by tbe probate court having exclusive jurisdiction of the subject matter. Moreover, pending tbe appointment and qualification of an administrator or tbe probate and filing of a will, a collector may be appointed in order tbat an action for wrongful death may be instituted within tbe statutory time. G. S., 28-25;
In re Palmer’s Will,
117 N. C., 133, 23 S. E., 104;
Gulledge v. R. R., supra.
It is provided by statute in tbis State, tbat whenever letters of administration have been issued and a will is subsequently probated and letters issued thereon, tbe letters of administration must be revoked. G. S., 28-31. Tbis same statute, however, provides tbat all acts by tbe administrator, done in good faith, are valid.
Shober v. Wheeler,
144 N. C., 403, 57 S. E., 152.
Tbe acts of administration done prior to tbe discovery and probate of a will, in the due course of administration, “are binding on the parties interested in tbe estate, including tbe executor in tbe will.” 21 Am. Jur., sec. 165, p. 466, citing numerous authorities. Furthermore, it is provided in G. S., 28-181, “In case tbe letters of administration of an executor, administrator or collector are revoked, pending an action to which be is a party, tbe adverse party may, notwithstanding, continue tbe action against him in order to charge him personally. If sucb party does not elect so to do, witbin six months after notice of sucb revocation, tbe action may be continued against the successor of tbe executor, administrator or collector in tbe administration of tbe estate, in tbe same manner as in case of death.” A cause of action which survives against
successor personal representatives of an estate likewise survives in favor of successor personal representatives of an estate. G. S., 28-172;
Suskin v. Trust Co.,
214 N. C., 347, 199 S. E., 276. And, where an action is brought to recover assets by “a general executor or administrator, who afterwards dies, resigns or is removed,” the action “may be revived in the name of his successor.” Schouler on Wills, Executors and Administrators, sixth edition, Vol. 3, sec. 2144. While any sum recovered for wrongful death is not a part of the assets of the decedent’s estate, nevertheless such sum can only be recovered in the name of decedent’s personal representative, and must be distributed under the laws of intestacy in this State. G. S., sections 28-173 and 28-176;
Neill v. Wilson,
146 N. C., 242, 59 S. E., 674;
Hines v. Foundation Co.,
196 N. C., 322, 145 S. E., 612;
Hanes v. Sou. Public Utilities Co.,
191 N. C., 13, 131 S. E., 402;
Pearson v. Stores Corp.,
219 N. C., 717, 14 S. E. (2d), 811.
Once a personal representative of an estate is duly appointed, if such representative dies, resigns or is removed, the law contemplates a continuity of succession until the estate has been fully administered; and upon the death, resignation or removal of a personal representative, who has properly brought an action for wrongful death, the action does not abate. G. S., 1-74. And G. S., 28-33, requires the clerk of the Superior Court, in all cases of revocation of letters, to appoint immediately some person to succeed in the administration of the estate. It is immaterial in so far as the continuity of the succession is concerned, whether the successor be an administrator
d. b. n.,
an executor, an administrator
c. t. a.,
an administrator
c. t. a., d. b. n.,
or a collector. The intent and purpose of the law relative to administration of estates is to protect and preserve the estate and all rights incident thereto. This is necessarily true because beneficiaries of estates must act through personal or legal representatives of the decedent’s estate, and such representatives in turn act under the supervision of probate courts. And while the right to bring an action for the benefit of an estate or the beneficiary thereof, is given by statute to the personal or legal representative of such estate; such representative, though a necessary, is, none the less, a formal or nominal party, acting in the capacity of a trustee or agent of the beneficiary of the estate. Sherman and Redfield on Negligence, Vol. 4, sec. 826, p. 1874;
Baker v. R. R.,
91 N. C., 308;
Broadnax v. Broadnax,
160 N. C., 432, 76 S. E., 216;
Avery v. Brantley,
191 N. C., 396, 131 S. E., 721.
Has the right of the appellant to prosecute this action been impaired because the defendant was the movent in obtaining the revocation of the original letters of administration and had a friendly administrator
c. t. a.
appointed as successor to the administrator, and who did not have himself made a party to the action? We do not think so. E. J. Burns held his letters as administrator
c. t. a.
of the estate for only 18 days, when
be resigned. It is clearly indicated by him in his resignation that he held his appointment merely as a straw man. He stated he was a stranger to the proceedings and had done nothing for or in behalf of the estate. He further stated that he was not the choice of the sole beneficiary under Mrs. Eby’s will, for personal representative of the estate, but that the original administrator was the choice of the sole beneficiary, and that he had so indicated his choice in writing to the clerk of the Superior Court. "Whereupon, Howard E. Harrison, said original administrator, was duly appointed administrator
c. t. a., d. b. n.,
of said estate, and is now acting in that capacity. It would be a travesty upon the administration of justice if a defendant in an action for wrongful death could, without notice, obtain the revocation of the letters of a personal representative of an estate, who had brought an action against him and have a successor appointed who was friendly to the defendant, and thereby defeat the action. The law is not so impotent. “Where an executor or administrator has been removed or discharged, the suit should be continued in the name of his successor in office.” 1 C. J. S., sec. 112 (a), p. 159;
Kearns v. Dean,
19 Pac., 817, 77 Cal., 555;
Skalski v. Krieger,
159 N. E., 851, 26 Ohio App., 186; 1 Am. Jur., sec. 177, p. 112; 1 C. J., sec. 227, p. 145 and p. 149, note 88;
Taylor v. Savage,
1 How., 282, 11 L. Ed., 132;
Lunsford v. Lunsford,
122 Ala., 242, 25 S., 171;
More v. More,
127 Cal., 460, 59 P., 823;
Tray Nat. Bank v. Stanton,
116 Mass., 435;
Cox v. Martin,
75 Miss., 229, 36 L. R. A., 800;
Burlington & M. R. Co. v. Crockett,
17 Neb., 370, 24 N. W., 219;
Trimmer v. Todd,
52 N. J. Eq., 426, 28 A., 583;
Heywood v. Ogden Motor Co.,
71 Utah, 417, 266 Pac., 1040, 62 A. L. R., 1232. The appellant’s motion should have been allowed.
The judgment of the court below is
Eeversed.