#### In the Matter of the Administration of the Estate of S. WARD BANKS, Deceased.

(Filed 13 April, 1938.)

Executors and Administrators § 4 — In special proceeding to remove admin-istratrix, her rights as distributee may not he determined.

In this special proceeding to remove an administratrix, order revoking letters was issued upon the court’s finding that the administratrix was not a resident of the State at the time of her qualification, O. S., 8 (2). The court then adjudicated her right to receive a widow’s distributive share of the estate. Held: The order of revocation is affirmed, hut the adjudication of her right to receive a distributive share is stricken out, since that question was not before the court, her right as a distributee being determinable only in an action or proceeding in which both she and the administrator are parties. O. S., 147.

Appeal by petitioners in special proceeding from Frizzelle, Presiding Judge of the Fifth Judicial District, at Bayboro, Pamlico County, 9 October, 1937.

*383 Sutton & Greene and, Ward & Ward for petitioners, appellants.

Julius Bees and D. L. Ward for respondent, appellee.

Schenck, J.

This is a special proceeding instituted before tbe clerk of Pamlico County Superior Court to remove Margaret T. Banks as administratrix of tbe estate of S. Ward Banks, wbo died 13 April, 1937. Margaret T. Banks was married to tbe deceased in 1927. Tbe petition alleges tbat tbe said Margaret T. Banks was not entitled to letters of administration for tbe reason (1)' tbat sbe bad eloped and was living in adultery at tbe time of tbe death of S. Ward Banks, (2) tbat sbe bad procured an absolute divorce from S. Ward Banks in tbe state of Florida, (3) tbat sbe was not a resident of tbe State of North Carolina at tbe time of her qualification as administratrix, and (4) tbat sbe is not a suitable and competent person to act as administratrix.

Hearing was bad before tbe clerk wbo entered an order dismissing tbe proceeding, from which order petitioners appealed to tbe resident judge.

Tbe cause came on to be beard by tbe resident judge wbo found, inter alia, tbat tbe said Margaret T. Banks was not a resident of tbe State of North Carolina at tbe time of her qualification as adminis-tratrix, and thereupon vacated tbe order of tbe clerk and adjudged tbat tbe letters of administration issued to Margaret T. Banks be revoked. C. S., 8(2). To this finding of fact and adjudication there was no exception.

Tbe judge further found as facts (1) tbat Margaret T. Banks bad not eloped and lived in adultery, (2) tbat the divorce decree entered in tbe action instituted by her in. Florida is null and void, and (3) tbat sbe is tbe widow of S. Ward Banks, deceased, and concluded as a matter of law tbat sbe is entitled to receive a widow’s distributive share in tbe estate of said deceased. To these findings of fact and conclusion of law tbe petitioners reserved exceptions and appealed to tbe Supreme Court.

Tbe exceptions we think, and so bold, are well taken. This is a special proceeding instituted before tbe clerk to remove an administra-trix, and tbe question of tbe right of Margaret T. Banks to share as a distributee of tbe estate of S. Ward Banks, deceased, was not before tbe court for decision, for tbe reason tbat tbe estate was not represented in said proceeding.

We therefore conclude tbat tbe findings of fact and conclusion of law excepted to should be stricken from tbe judgment, and tbat tbe judgment should be affirmed only in so far as it vacates tbe order of tbe clerk and revokes tbe letters of administration issued to Margaret T. Banks, and it is so ordered.

*384In modifying tbe judgment below we do not intimate an opinion upon the question as to whether Margaret T. Banks is entitled to a distributive share in the estate of S. Ward Banks, deceased. Should this question arise by a refusal of the administrator to be appointed by the clerk to recognize Margaret T. Banks as a distributee it must be determined in an action or proceeding (C. S., 147) wherein such administrator and Margaret T. Banks are, respectively, parties.

The judgment as modified by this opinion is affirmed.

Modified and affirmed.