
    Feltz vs. Clark.
    ]. Tbe office of administrator is not filled till the bond be given.
    2. And when the county court appointed Clark, who was the nominee of the nearest of kin, to be administrator of William and Priscilla Feltz, and Clark gave bond for the administration of Priscilla's estate only, but proceeded to settle the estates of each; and after the lapse of five years the nephew of the deceased his nearest of kin resident in the state, applied for Jetteis. Held, that it was proper, upon bond being given by Clark according to law, to dismiss the petition of the applicant.
    At the September term, 1842, of tbe County Court of Dyer county, Pleasant Feltz presented his petition, verified by affidavit, praying to be appointed administrator of the estate of his deceased uncle William Feltz. The prayer of this petition was refused and the petition' dismissed. The petitioner appealed to the Circuit Court. At the October term, 1842, Harris, Judge, presiding, the judgment of the County Court was affirmed. The petitioner appealed in error to the Supreme Court. The bill of exceptions, shows that William Feltz and his wife Priscilla died intestate and without issue, in the county of Dyer, leaving considerable personal estate; that the only surviving brother, Henry Feliz, a citizen of Virginia, by power of attorney, dated 7th September, 1837, authorized and empowered William Sampson, of Dyer county, to institute all proper-means to recover his distributive share of the estate of his deceased brother; that in promotion of this object, Sampson procured the County Court in 1838 to appoint Henderson Clark administrator; that the following order was recorded: “Ordered by tbe court, that Henderson Clark be appointed administrator of the estate of William Feltz and Priscilla Feltz, deceased, and enter into bond for $2000, payable on condition as the law directs, and took the necessary oath as administrator”; that Clark thereupon gave bond in the penalty of $2000 for the due and legal administration of the effects of Priscilla Feltz, deceased; that no bond was given for the administration of- the estate of William Feltz, deceased; that the records of the County Court of Dyer showed, that in the actual administration of said estate, the estate of William and Priscilla was included, and that Clark had discharged the debts and paid three of the distributees their respective shares. The bill of exceptions shows also that the petitioner was a nephew of the deceased William Feltz and his next of kin resident in the State.
    
      A. W. 0. Totten, for petitioner.
    It does not appear in the order appointing Clark administrator, that the court had jurisdiction or power to make the order.
    1. The record should assume all the facts necessary to give it validity, viz; that the decedent died intestate, being a resident of Dyer county; or if a nonresident, having effects there; and that Clark was of kin or a creditor. Unless these facts do exist, the appointment is void for want of jurisdiction.
    
    It is a proceeding in rem in a' court of record, and the action •of the court can only appear by its record; and if that record do not assume the facts above recited, the power of the court •does not appear. Nelson's lessee vs. Griffin, 1 Yer. R. 628; 8 East, 129.
    Clark administered on Wm. Phelps’s estate; the intestate is Wm. Felts; whether one is administrator, is to be tried by the record.
    2. But if the proof of these facts may be in pais, and not by the record, yet the court did not exercise its power to grant the administration, and no appointment was in fact made, because no bond was taken.
    By the act of 1794, ch. 1, s. 47, (which merely re-enacts that •of 1777, ch. 2, s. 62, in this respect,) it is provided, “That the ■county courts shall and may, within their respective counties, take the probate of wills,” &c. “and the said courts shall and may make orders for issuing letters testamentary and letters of administration, which letters shall be signed and issued by the clerk of said court.” N. & C. 708. The letters of administration should be only copies of the order, neither more nor less. 1 Yer. 628. The act of 1715, ch. 48, s. 5, provides, that the clerk shall notissue “letteíis of administration, without the administrator has taken the oath, &c. and also has given sufficient bond, with two or more able sureties, taken before the county court, respect being had to the value of the estate,” &c. And the 4th section of the same act provides, that no one shall enter upon the administration of.any deceased person’s estate, without letters of administration, &c. under a penalty.
    It would seem, then, that as no bond was taken and approved of by the court, its action was imperfect and incomplete, and it did not exercise its power.
    This principle seems to be acknowledged in the case of Martin v. Peck, 2 Yer. R. 298, where it was held that the assent of an executor to a separate legacy, he not having proved the will and entered into bond with sureties, will not vest the legal title in the legatee, because not in fact the executor, the same law in this respect being applicable to executors and administrators.
    So in Dranev. Bailess, 1 Hum. 175, it was held, that although an executor of an executor is the executor of the will of the first testator, yet if he do not enter into bond, with sureties, to administer the estate of the first testator also, under his will, he is not his executor, but will be deemed to have renounced that office. See also Baldwin v. Buford, 4 Yer. 20.
    3. If the plaintiff is next of kin, and therefore entitled to the administration, to effect this object the former grant should be revoked, deeming it in this respect voidable oply, and not void. The court should at léast have made this order. 1 Wms. Ex. 361.
    
      Sampson, for the defendant.
   Reese, J.

delivered the opinion of the court.

In 1837, or before that time, William Feltz and Priscilla his wife departed this life in the county of Dyer, intestate and without issue. His only surviving brother, Henry Feltz, of Virginia, duly empowered Isaac Sampson, Esq. of Dyer county, to institute all proper means to recover his distributive share of the estate of William Feltz. To this end, said Sampson procured the said County Court of Dyer, at their January term, 1838, to make the following order, to wit: “Ordered by the court, that Henderson Clark be appointed administrator of the estate of William Feltz, deceased, and Priscilla Feltz, his wife, deceased; and enter into bond for two thousand dollars, payable on condition as the law directs, and take the necessary oath as administrator.” The bond, however, on that occasion made, although in the penalty of two thousand dollars, did not specify in its conditions that Henderson Clark had been appointed administrator of the estate of William Feltz, but named Priscilla Feltz only; nor was bond at any time given by Clark for administration of the estate of William Feltz. But the records of the County Court of Dyer show that in the actual administration by said Clark, the estates of both William and Priscilla Feltz were included; and defendant Clark had paid.off the debts of William Feltz, deceased, and also had paid off three of the distributees. In this state' of things, and five years nearly after the informal grant of administration on the estate of William Feltz, Pleasant H.-Feltz, his nephew, and next of kin resident within the State, presented his petition to the County Court of Dyer to be appointed administrator of the estate of the said William Feltz. The application was refused by the County Court, and their judgment in that behalf was affirmed, on appeal, in the Circuit Court; to reverse which judgment, the appeal in error has been prosecuted to this court. If bond had been given pursuant to the statute by Henderson Clark as administrator of William Feltz, it would scarcely be contended for the plaintiff, after such a lapse of time, and after so much done towards the final administration of the estate, that it would have been the legal duty of the County Court, upon the mere ground of petitioner’s proximity in blood to the intestate, and without any wrong or default of the defendant, to have removed the latter from the administration, and given the same to the petitioner. But it is urged by the plaintiff, that no bond having been given, Clark, the defendant, cannot be regarded as in any sense administrator of .the estate; and there being no administrator, that the petitioner, as a matter of course, should have been admitted by the County Court into the administration. If this were so, in sheer strictness, it would be upon the ground merely of the want of a bond; but that want being supplied, Clark would present himself as one who, five years before, had been' appointed administrator; who at the time of his appointment wq,s the nominee, in substance, of the nearest of kin to the intestate, and by one degree nearer than the petitioner; who had marshalled the assets and paid the debts of the estate; and out of the surplus had paid the portion of several of the distributees. And so presenting- himself, the County Court would have acted improperly, thrown the estate into confusion, and produced useless litigation, by removing the defendant and appointing the petitioner to the administration. But although in the absence of a bond the court may have regarded the defendant as administrator de facto, surrounded by all the other circumstances indicated, still, until bond actually given, we do not perceive how, under our statute, the court could regard the office of administrator as in strictness filled. We cannot say, therefore, that in the judgment of the Circuit or County Court there has been no error, and we must reverse the judgment and remand the cause to the County Court of Dyer county; and said County Court will grant letters of administration on said estate to the petitioner according to law, unless said Henderson Clark shall enter into bond with sureties to the satisfaction of the County Court, for the faithful administration of said estate; which being done, the plaintiff shall take nothing by his motion, and his petition shall be dismissed.  