
    IN THE MATTER OF THE ADMINISTRATION OF THE ESTATE OF SARAH ELLICE MEYERS.
    
      Administration — Right of Husband to Administer on Wife’s Estate — Transfer of Prior Right to Administration — Duty of Clerk.
    
    1. A husband has a right to administer the estate of his deceased wife, whether she die intestate (The Code, §1876) or leave a will without naming an executor (The Code, §2166).
    2. A husband having a prior right to administer, may transfer that right to another by appointment, or may cause another to be associated with him in the administration, and this right, and the power and duty of the Clerk: to make such appointments, are not affected by the filing and probating in common form of a wilting purporting to be the will of the wife, for the duties and responsibilities of the administrators are not changed by the fact that a will has been or may be probated, which will guide them in their administration after the payment of debts, etc.; being subject to the orders of the Clerk touching the administration, they must obey, and if guilty of misconduct, they may be removed.
    
      3. Where a husband and chosen associate were appointed administrators of the estate of the deceased wife of the former, they should not have been ousted by the Clerk for the reason that at the time the appointment was made a writing purporting to be a will was on record and an issue devisavit vel non was pending.
    By consent, upon the appeal of the respondents, Morris Meyers and Charles A. Webb, administrators of Sarah Ellick Meyers, from the Clerk of the Superior Court, his Honor Arm-field, J., found the facts, substantially, as follows:.
    “That on the 1st day of October, 1893, Mrs. Sarah Ellick Meyers, of whom the respondent Morris Meyers was her husband, died in the city of Richmond, Va. Her domicile was in Asheville, Buncombe County, N. 0., and she had property in Buncombe County. On the 12th day of October, 1893, there was presented to the Clerk of the Superior Court of Buncombe County by James H. Merrimon, Esq., in behalf of persons claiming to be legatees named, a paper-writing purporting to be the will of the said Sarah Ellick Meyers. Whereupon the Clerk, at the instance of said J. H. Merrimon, Esq.; issued a commission under the provisions of section 2155 of The Code for the examination of certain persons concerning the execution of said paper-writing by Mrs. Sarah Ellick Meyers. Upon the return of the same, with the examination of the said witnesses, and upon receiving and opening and reading the same, the Clerk of the Court said to his deputy, one J. McD. Whitson, “ I consider the will proven. Record and file the same with the deposition of the witnesses,” and the same were copied into a book known as Record of Wills, kept in said office. On the — day of October, 1893, at the instance of J. H. Merrimon, Esq., representing said alleged legateés, the Clerk of the Court issued a notice to Morris Meyers, husband óf deceased, as provided by section 1380 of The Code. On the 10th day of November, 1898, the said Morris Meyers, in response to said notice, with the respondent Charles A. Webb, made application to the Clerk of the Superior Court for appointment as administrators of Sarah Ellick Meyers, deceased, made bond purporting to be an administrator’s bond, and on said date they were qualified in said office as administrators by the Clerk of the Superior Court of Buncombe County, and general letters of administration, as in cases of intestacy, issued to them by the Clerk, whereupon they entered upon the duties of said office.
    On the 13th day of November, at the instance of J. H. Merrimon, Esq., representing said alleged legatees, the Clerk, who had previously orally adjudged said will to be duly proven, signed order in the record, declaring said paper-writing to have been duly proven and ordering it to be recorded; and on the-day of November, 1893, also at the instance of J. H. Merrimon, Esq., he, the said Clerk, issued a notice to the respondents to show cause why their letters of administration should not be revoked, the Clerk being of the opinion that, under the circumstances, he had not the power to issue letters as in case of intestacy.
    On the-day of-_, 1893, the respondents appeared before said Clerk in answer to said notice, and filed answer to the rule to show cause. Whereupon, the Clerk made an order revoking said letters of administration, and the respondents appealed therefrom to the Judge of this Court.
    The respondents, at the time of their application for letters of administration, knew that said paper-writing alleged to be the will of Sarah Ellick Meyers was in the office of the Clerk of the Superior Court of Buncombe County, and that it, with the proof,.had been recorded. At once, upon said order of November-13, 1893, being made, declaring said paper-writing to have been sufficiently proven, and ordering the same to record, the respondents as administrators, and Morris Meyers, as an individual, filed a caveat to said will and made-the bond required by statute. Whereupon, the Clerk made up the issue set out in the answer of the respondents, and transferred the same to the civil issue docket, of this Court, where the same is now pending for trial before the-Judge and a jury, and made the order required by the statute (section 2159 of The Code) therein.”
    The Court, being of opinion, upon this finding of facts and the record, that the action of the Clerk of the Superior Court of Buncombe County in issuing to the respondents the general letters of administration as in cases of intestacy was void for want of jurisdiction, affirmed the order of the Clerk revoking such appointment, to which the respondents excepted and appealed.
    
      Mr. James H. Merrimon, for legatees.
    
      Mr. Charles A. Webb, for appellants.
   Burwell, J.:

A husband has a right to administer the estate of his deceased wife, both in the event of her death intestate (The Code, § 1376) and also in the event that she leaves a will, but names no one as executor. The Code, §2166.

The script which has been propounded as the will of Mrs. Sarah Ellick Meyers does not appoint anyone to execute it. Therefore, if it be found, upon the trial of the issue devisavit vel non, that it is the will, that cannot have the effect of. depriving her husband of the right to administer the estate. Hence, while it is true that there is a contest pending, there is no controversy in regard to the right of administration. Nor can there be one. The. statutory provisions are plain. Little v. Berry, 94 N. C., 433.

It has been decided by this Court that one who has the prior right to administration may transfer that right by appointment. Little v. Berry, svpra.

If the husband could have lawfully transferred his right to administer his wife’s estate to another, he may certainly cause another to be associated with him in the administration. If it was proper to appoint the husband, it was proper to appoint the husband and his chosen associate, Webb, to be co-administrator.

From what has been said, it follows that the husband’s right to letters of administration, and the Clerk’s power and duty to appoint him and his chosen associate to be co-administrator, were not at all affected by the filing and probating in common form of the script which purported to be the will of Mrs. Meyers, for, as has been noted, that instrument named no one to administer the estate under its provisions. Suttle v. Turner, 8 Jones, 403, is overruled iu Little v. Berry, supra. The duties and responsibilities of these administrators are not in any degree changed by the fact that a will has been or may be probated that will guide them in their distribution of the assets that remain after payment of debts and charges of administration. They must take notice of that. The Clerk has power to issue orders touching the administration, and they must obey. If they are guilty of misconduct, they may be removed.

But they should not have been ousted by the Clerk" for the reasons set out in the petition upon which his order of removal was founded.

His Honor should have directed the Clerk to revoke his order of removal. It is so ordered. Error.  