#### JAMES M. B. HUNT v. W. M. SNEED and wife.

Jurisdiction over cases seeking from administrators additional securities upon their bonds, is vested in the Clerk of the Superior Court, in Ms character as Probate Judge.

(McAdoo v. Benbow, 63 N. C. 461, cited and approved.)

Note. — See Hicni v. Sneed, ante 176.

Order, before Watts, J., upon appeal from the Clerk, at Chambers, March 22d 1869, Granville Court.

His Honor had affirmed an order, made by the Clerk upon application by the plaintiff, that the defendant Sneed, give better security upon his bond as administrator.

The defendant objected, for want of jurisdiction in the Clerk, &c.

The facts are the same as in the case between the same parties, ante 176.

Bragg for the appellants.

Graham, contra.

Dick, J.

Clerks of the Superior Court; as Judges of Probate, have jurisdiction to grant letters testamentary and of administration, and to audit the accounts of executors and administrators, &c. Const. Art. IY, sec. 17.

As there are now no Courts of Equity in this State, the jurisdiction of Judges of Probate combines in many respects, the powers of the Court of Chancery and the Ecclesiastical Court in England, on this subject. In England, letters testamentary and of administration, are granted by the Ordinary of the diocese in which the testator, or intestate, resided. The Ordinary was formerly the administrator of such intestate, but the statute 31 Edw. Ill required him to appoint an administrator, of “ the next and most lawful friends ” of the intestate; and the statute 22 and 23 Oar. II required the Ordinary “to take sufficient bonds with two or more able sureties, respect being had to the value of the estate.”

Administrators are the officers of the Ordinaries, and subject to their control in the Eclesiastical Courts. Upon the *181application of persons interested in an estate, and upon sufficient canse shown, the Ecclesiastical Court will, by citation, require the administrator to appear and render an account of bis administration, and renew bis bond or justify bis sureties. The bmited power of the Ecclesiastical Court to enforce its orders and decrees gaye rise to a concurrent jurisdiction in Chancery.

The Court of Chancery regards executors and administrators as trustees, and compels them faithfully to execute their trusts in administering the assets of the esfate in their hands. In cases in which the Ecclesiastical Court cannot do complete justice, the Court of Chancery assumes exclusive jurisdiction, and will compel the performance of its orders and decrees by the process of attachment.

The Courts of Equity in this State exercised a similar jurisdiction until they were abolished by the present constitution. They would not interfere to take an estate out of the hands of an executor merely on the ground of an insolvency which existed at the time of his appointment, for he derived his power from the will of his testator. If an insolvent executor was guilty of a devastavit, or any other maladministration, then a Court of Equity would have taken the estate out of his hands by appointing a receiver; or would have required him to enter into bond with sufficient sureties to secure the proper administration of the assets.

An administrator was appointed by the officers of the law, and was required at the time of his appointment, to give bond with sufficient sureties, to secure the faithful discharge of the duties of his office; and the courts had ample powers to enforce the proper performance of such duties, and to require said bond to be kept at all times sufficient to secure the object for which it was given. The courts only interfered upon the application of persons directly interested in the assets, and upon sufficient cause being shown, until their, jurisdiction was enlarged by statute (Bev. Code, chap. 46, sec. 39,) in behalf of the sureties on the bonds of executors and administrators.

*182Under our new system, the Superior Courts have all the powers which formerly belonged to the County Courts, the the Superior Courts of Law, and the Courts of Equity.

The Superior Court has two departments, i. <?.. the Court of Probate, under the control of the Judge of Probate, and the Superior Court proper, under the control of the Judge of the District. The jurisdiction of the Court of Probate, which is expressly defined in the constitution (Art. IV, sec. 17) is original, and cannot be exercised by the Judge of the Superior Coiírt except upon appeal. The constitution (Art. IV, sec. 17,) provides for the extension of the powers of the Judge of Probate u to such other matters as shall be prescribed by law,” but this jurisdiction may be modified at any time by the Legislature: McAdoo v. Benbow, 63 N. C. 461.

In the case before us the defendant W. M. Sneed, intermarried with the executrix of the testator, and had given the bond required by law in such cases. He thus became substantially administrator cum testamento annexo, and on the adoption of the the constitution, he was subject to the supervision and control of the Judge of Probate of Gran-ville county. The proceedings against the defendants, to compel them to accomit and give a new bond with additional sureties, or justify the sureties on the old bond, were properly commenced before said Judge of Probate. His powers in this respect are derived from the constitution and the Code of Civil Procedure, and the Act of 1868-69, ch. 113, only sets forth the forms of proceedings and other details by which those powers are to be exercised. Before the passing of said Act, he had the power to require the defendants to account for the assets of the estate in their hands, and give a new bond with sufficient sureties, or be removed from office, and he might have enforced his orders and decrees, by process of contempt.

As it appears that the estate in the hands of the defendants has been greatly diminished by the results of the late *183war, tbe Judge of Probate should only require a new bond sufficient to secure tbe assets, with wbicb tbe defendants are now properly chargeable.

There is no error in tbe order appealed from.

Let this be certified to tbe Judge of Probate for G-ranville county, so that be may proceed with this matter according to law.

Pee Cueiasi. Ordered accordingly.