{
  "id": 8553211,
  "name": "IN THE MATTER OF THE ESTATE OF WILLIAM OVERMAN, DECEASED",
  "name_abbreviation": "In re the Estate of Overman",
  "decision_date": "1972-06-28",
  "docket_number": "No. 7215SC341",
  "first_page": "712",
  "last_page": "716",
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    "id": 14983,
    "name": "North Carolina Court of Appeals"
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  "last_updated": "2023-07-14T22:58:48.650385+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges Bkock and MORRIS concur."
    ],
    "parties": [
      "IN THE MATTER OF THE ESTATE OF WILLIAM OVERMAN, DECEASED"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nAppellant assigns as error the Court\u2019s conclusion that the Clerk did not have jurisdiction to appoint Craven as Administrator d/b/n of Overman\u2019s estate, and that Nationwide had standing to challenge his appointment. In 34 C.J.S., Executors and Administrators, \u00a7 1018, it is stated:\n\u201cTo warrant the appointment of an administrator de bonis non, it is absolutely essential that the previous incumbency should have actually ended, and, if there is no vacancy, the appointment is void for lack of jurisdiction.\u201d\nIn 21 Am. Jur., Executors and Administrators, \u00a7 774, it is stated:\n\u201cTo warrant the appointment of such an administrator (administrator de bonis non) the office of administrator must be vacant; a vacancy is a jurisdictional fact; an appointment of an administrator de bonis non when there is no vacancy is absolutely void and may be so declared, even, in a collateral proceeding.\u201d\nIn Edwards v. McLawhorn, 218 N.C. 543, 11 S.E. 2d 562 (1940), Justice Winborne, speaking for the North Carolina Supreme Court, said:\n\u201cThe general rule is that, after an executor or administrator is appointed and qualified as such, his authority to represent the estate continues until the estate is fully settled, unless terminated by his death, or resignation, or by his removal in some mode prescribed by statute, or unless the letters be revoked in a manner provided by law.\nIt is also an established principle of law that to warrant the appointment of an administrator de bonis non, or de bonis non, cum testamento annexo, the office of administrator or executor must be vacant. Vacancy is a jurisdictional fact, and an appointment of either an administrator de bonis non, or an administrator de bonis non, cum testamento annexo, when there is no such vacancy is absolutely void, and may be so declared, even in a collateral proceeding.\u201d\nAppellant contends that the discharge of Mrs. Overman as the administratrix of her husband\u2019s estate was \u201cvalidly accomplished\u201d by the order of the Clerk dated 19 March 1970, purporting to appoint Craven as Administrator d/b/n. We do not agree.\nThere is nothing in this order to suggest that the Clerk did anything more than attempt to appoint Craven Administrator d/b/n. The recital in the order that \u201c . . . the widow of the decedent [was] present, the widow having previously served as Administratrix of the estate and having been fully discharged from these duties pursuant to order of this Court\u201d does not amount to Mrs. Overman\u2019s resignation as Administratrix pursuant to G.S. 36-10 nor to her removal and revocation of her letters of administration pursuant to G.S. 28-32. The principle that every court, where the subject matter is within its jurisdiction, is presumed to have done all that is necessary to give force and effect to its proceedings has no application in this case where the record affirmatively shows that the original administratrix, duly appointed by the Clerk, was living, had not resigned, had not been removed, had not had her letters of administration revoked, or had not been otherwise discharged according to law. In re Davis, 277 N.C. 134, 176 S.E. 2d 825 (1970) ; Marshall v. Fisher, 46 N.C. 111. The fact that Mrs. Overman purportedly agreed and consented that an Administrator d/b/n be appointed and that she did not appeal from the order purporting to appoint Craven as such administrator, does not validate Craven\u2019s appointment since jurisdiction may not be conferred by either waiver or consent. High v. Pearce, 220 N.C. 266, 17 S.E. 2d 108 (1941) ; Springer v. Shavender, 118 N.C. 33, 23 S.E. 976 (1896).\nThe suggestion that Nationwide does not have \u201cstatus or standing\u201d to challenge Craven\u2019s appointment is meritless, since \u201cany party interested or affected by a void judgment may attack it collaterally, in a proper case, or by a direct proceeding to have it stricken from the record as a nullity.\u201d Reynolds v. Cotton Mills, 177 N.C. 412, 99 S.E. 240 (1919). Obviously, Nationwide, having been sued by Craven purporting to act in behalf of Overman\u2019s estate, has a clear right to inquire as to whether plaintiff is entitled to sue.\nWe hold that the office of administrator of Overman\u2019s estate was not vacant on 19 March 1970, and the Clerk had no authority to appoint Craven as Administrator d/b/n. The judgment of the Superior Court is\nAffirmed.\nJudges Bkock and MORRIS concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Newsom, Graham, Stray horn, Hedrick & Murray by James L. Newsom for Nationwide Insurance Company, movant, ap-pellee.",
      "Robinson 0. Everett for James B. Craven III, Administrator d/b/n, respondent appellant."
    ],
    "corrections": "",
    "head_matter": "IN THE MATTER OF THE ESTATE OF WILLIAM OVERMAN, DECEASED\nNo. 7215SC341\n(Filed 28 June 1972)\n1. Executors and Administrators \u00a7 4\u2014 resignation or removal of adminis-tratrix \u2014 recital in order appointing administrator d/b/n\nThe recital in an order purporting to appoint an administrator d/b/n that \u201cthe widow of the decedent was present, the widow having previously served as administratrix of the estate and having been fully discharged from these duties pursuant to order of this Court\u201d did not amount to a resignation by the administratrix pursuant to G.S. 36-10, and did not constitute a removal or revocation of her letters of administration pursuant to G.S. 28-32.\n2. Executors and Administrators \u00a7 4\u2014 final accounting by administratrix \u2014 subsequent appointment of administrator d/b/n\nAlthough the administratrix of an estate had filed a final account which had been approved and confirmed, the Clerk of Court had no jurisdiction thereafter to appoint an administrator d/b/n of the estate, where the original administratrix was living and had not resigned, been removed, had her letters of administration revoked, or been otherwise discharged according to law.\n3. Executors and Administrators \u00a7 4\u2014 appointment of administrator d/b/n \u2014 consent of administratrix\nThe fact that an administratrix purportedly agreed and consented to the appointment of an administrator d/b/n and that she did not appeal from the order purporting to appoint an administrator d/b/n does not validate the appointment of the administrator d/b/n, since jurisdiction cannot be conferred either by waiver or consent.\n4. Executors and Administrators \u00a7 5\u2014 insurer sued by administrator d/b/n \u2014 standing to challenge appointment\nAn insurance company which was sued by an administrator d/b/n purporting to act for an estate had standing to challenge the validity of the appointment of the administrator d/b/n.\nAppeal by James B. Craven III, respondent, from Hob-good, Judge, September 1971 Session of Superior Court held in Orange County.\nThis is an appeal from an order of the Superior Court entered in a proceeding instituted before the Clerk of the Superior Court of Orange County by motion of Nationwide Insurance Co. (Nationwide) to vacate and set aside an order of the Clerk appointing James B. Craven III (Craven) Administrator d/b/n of the estate of William Overman (Overman). The following facts are uncontroverted: On 25 February 1966, the Clerk duly appointed Overman\u2019s widow, Doris P. Overman, Ad-ministratrix of his estate; and on 12 October 1966, Mrs. Over-man as Administratrix, filed with the Clerk a final account and:\n\u201cOrder was entered that date by the Clerk providing:\n\u2018The foregoing Account has been audited by me, the vouchers submitted in support thereof examined, and the Account is hereby approved and confirmed. Let the Account, together with this Order be recorded and filed.\u2019 \u201d\nAt the time of his death Overman was the defendant in a civil action wherein Stanley Wright sought to recover damages for personal injuries and on 13 October 1966, \u201c. . . upon Petition filed by Everett, Attorney for Wright, Order was entered by the Clerk substituting Doris P. Overman, Administratrix, as Defendant in the action instituted by Wright against Overman.\u201d On 5 April 1967, a judgment in the amount of $50,000 was entered in the Superior Court of Orange County in favor of Wright against Overman\u2019s estate and the defendant gave notice of appeal. Thereafter on 30 June 1967, Nationwide paid into the office of the Clerk on the said judgment $5,000 plus interest and costs and the Administratrix executed a waiver of appeal. On 19 March 1970 upon petition of the judgment creditor and his attorney, Everett, the Clerk entered an order purporting to appoint Craven Administrator d/b/n of Overman\u2019s estate; and as such, Craven instituted suit in the United States District Court for the Middle District of North Carolina against Nationwide to recover $45,000 for the said estate. Nationwide then filed a motion before the Clerk of Superior Court for Orange County to have Craven\u2019s appointment as Administrator d/b/n vacated and set aside. On 11 March 1971, after a hearing, the Clerk made findings of fact and denied the motion. Nationwide filed specific exceptions to the Clerk\u2019s findings and order and appealed to the Superior Court. After a hearing de novo in the Superior Court, Judge Hobgood concluded that Nationwide had \u201cstatus and standing\u201d to challenge the Clerk\u2019s order purporting to appoint Craven Administrator d/b/n of Overman\u2019s estate and that the Clerk under the circumstances of this case on 19 March 1970 lacked jurisdiction to appoint an administrator d/b/n of Overman\u2019s estate.\nFrom an order of the Superior Court reversing the Clerk\u2019s denial of Nationwide\u2019s motion to vacate and set aside Craven\u2019s appointment and remanding the proceeding to the Clerk with directions to vacate and set aside his appointment, Craven appealed to this Court.\nNewsom, Graham, Stray horn, Hedrick & Murray by James L. Newsom for Nationwide Insurance Company, movant, ap-pellee.\nRobinson 0. Everett for James B. Craven III, Administrator d/b/n, respondent appellant."
  },
  "file_name": "0712-01",
  "first_page_order": 738,
  "last_page_order": 742
}