Withrow v. . Depriest

Supreme Court of North Carolina

Withrow v. . Depriest

26 S.E. 110, 119 N.C. 541

CourtSupreme Court of North Carolina

DecidedSeptember 5, 1896

StatusPublished

Cited by6 cases

This text of 26 S.E. 110 (Withrow v. . Depriest) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Withrow v. . Depriest, 26 S.E. 110, 119 N.C. 541 (N.C. 1896).

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Opinion

FaiRoloth, C. J. :

The only question presented is the right of the plaintiff to have the defendant removed from the administration of his intestate’s estate.

Facts found by the clerk: 1. John C. Withrow died intestate June 3, 1895, leaving the plaintiff, his widow, and one child only, eight years of age. 2. Within thirty days from said death, the plaintiff filed with the clerk an incomplete application for letters of administration blit did not offer to file bond or to qualify at any time. 3. That on December 5, 1895, more than six months after said death, the public administrator having made no application (Code, Sec. 1394,) the defendant, at the instance of judgment creditors, was appointed administrator, and filed his bond and was duly qualified, without any notice or citation to the plaintiff; that the defendant is a discreet businessman of said county.

The clerk refused to remove the defendant, and his Honor reversed the ruling and remanded the cause, and directed the clerk to revoke the defendant’s letters and grant let *544 ters of administration to the plaintiff upon complying with the statute, &c. Defendant appealed.

The plaintiff’s present application was made subsequent to December 5, 1895. The subject of granting letters of administration, &c., is regulated by The Code, Ch. 33. Preference is given to certain persons successively, provided they assert their rights within the time prescribed by law. Public policy and the rights of distributees and creditors require that the estates of deceased persons be settled within a due and reasonable time. If those that have the preference fail to act within six months (Section 1394) they must be taken to have renounced or waived their rights. As the question has. been fully considered and decided in this Court, we need not pursue it any further. Hill v. Alspaugh, 72 N. C., 402; Garrison v. Cox, 95 N. C., 353.

Reversed.

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FaiRoloth, C. J. :

The only question presented is the right of the plaintiff to have the defendant removed from the administration of his intestate’s estate.

Facts found by the clerk: 1. John C. Withrow died intestate June 3, 1895, leaving the plaintiff, his widow, and one child only, eight years of age. 2. Within thirty days from said death, the plaintiff filed with the clerk an incomplete application for letters of administration blit did not offer to file bond or to qualify at any time. 3. That on December 5, 1895, more than six months after said death, the public administrator having made no application (Code, Sec. 1394,) the defendant, at the instance of judgment creditors, was appointed administrator, and filed his bond and was duly qualified, without any notice or citation to the plaintiff; that the defendant is a discreet businessman of said county.

The clerk refused to remove the defendant, and his Honor reversed the ruling and remanded the cause, and directed the clerk to revoke the defendant’s letters and grant let *544 ters of administration to the plaintiff upon complying with the statute, &c. Defendant appealed.

The plaintiff’s present application was made subsequent to December 5, 1895. The subject of granting letters of administration, &c., is regulated by The Code, Ch. 33. Preference is given to certain persons successively, provided they assert their rights within the time prescribed by law. Public policy and the rights of distributees and creditors require that the estates of deceased persons be settled within a due and reasonable time. If those that have the preference fail to act within six months (Section 1394) they must be taken to have renounced or waived their rights. As the question has. been fully considered and decided in this Court, we need not pursue it any further. Hill v. Alspaugh, 72 N. C., 402; Garrison v. Cox, 95 N. C., 353.

Reversed.

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Bluebook (online)

26 S.E. 110, 119 N.C. 541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/withrow-v-depriest-nc-1896.

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