Opinion
(June Term, 1830.)
1. The statute 22 and 23 Charles II, giving to the husband the whole of the personal estate of his deceased wife, is in affirmance of the common law.
2. A grant of administration as follows: "Administration on the estate of A, granted to B, he giving bond, etc.," is to be construed as unconstitutional. Letters of administration are only a copy of the minutes certified under the seal of the Court.
3. An administrator de bonis non is barred by a possession adverse to the first administrator continued for three years.
DETINUE for several slaves. The defendant pleaded the general issue and the statute of limitations.
No counsel for plaintiff.
Gaston, for defendant.
FROM NEW HANOVER.
On the trial the plaintiff offered one Herring as a witness, who, being sworn on his voir dire, deposed that he had married a granddaughter of the plaintiff's intestate; that both the parents (361) of his wife, as well as his wife herself, were dead intestate. The counsel for the defendant objected to the competency of the witness, and the objection was sustained by the presiding judge.
To rebut the defence arising under the plea of the statute of limitations, the plaintiff produced her letters of administration, which were issued in 1826, within three years of the date of her writ, and proved that the intestate died in 1789, and offered evidence to show that the defendant had taken possession of her slaves after the death of the intestate, but before the grant of administration to her. The defendant produced the minutes of New Hanover County Court of June term, 1799, and read in evidence an entry in the following words: "Administration on the estate of Richard Miller, deceased, granted to William Taylor, giving bond in six hundred pounds, with I. M. and O. B. as sureties," and contended that the slaves were in his possession adverse to the title of Taylor, the first administrator, after the grant of administration to him, and before his death. The plaintiff insisted that the grant of administration to Taylor was conditional; that the defendant should show a performance of the condition by producing
be proved, and the letters of administration exhibited. But His Honor, Judge NORWOOD, ruled that the record was evidence of the administration; that the grant was unconditional, and that it was not incumbent on the plaintiff either to produce the bond or the letters of administration, or to prove the qualifications of the administrator. Upon the issue of fact, his Honor instructed the jury that if they were satisfied that the defendant, or those under whom he claimed, had possession of the slaves during the life of Taylor, and held them adversely (362) to his title, that they ought to find for the defendant.
A verdict was returned accordingly, and the plaintiff appealed.
The witness offered by the plaintiff was properly rejected. It was the husband of the distributee of the intestate; and, although his wife was dead, that made no difference. The declaratory act of 22 and 23 Charles II., is only in affirmance of the common law, and the husband, jure maritali, is entitled to the wife's personal estate, let who will administer.
The opinion of the Court below was clearly right on the other point also. The letters of administration do not contain any matter distinct from the record. They are a mere copy of it, with the addition only of a certificate that they are a copy, verified by the seal of the Court. If the order had been that administration would be granted to William Taylor upon his giving bond, it would have been conditional and nugatory. The Court can make no such order, for they would still have to judge of the bond and administer the oath. But the words "granted" and "giving" in this order, plainly mean "is granted," and "now giving bond;" for the bond, its amounts, and the sureties are specially set forth. In making profert letters, the administrator avers only that he has them, and does not show forth his bond or his oath that he has duly obtained them. That is all merged in the fact of his being the administrator by order of the Court, which is held to do everything rightly.
If there was a previous administrator, during whose time the defendant held the slaves adversely, he is clearly protected. For as a bailment from the first administrator would enure to the benefit of the administrator de bonis non, so shall a bar against the (363) former operate against the latter.
PER CURIAM. No Error.
Cited: Davis v. Lanier, 47 N.C. 311; Hughes v. Hodges, 94 N.C. 60; Iron Co. v. Abernathy, Ib., 548; Hamerton v. Sexton, 104 N.C. 86.
Dist: Spencer v. Cahoon, 15 N.C. 227; Spencer v. Cahoon, 18 N.C. 28; Wooten v. Wooten, 123 N.C. 223.