and Ellen Louisa Shaw to revoke the probate, and for a fresh grant of probate to be made to themselves, reserving power to Fanny Elizabeth Shaw to take probate if and when she should recover.

The next of kin of Fanny Elizabeth Shaw had been served with notice of the motion.

GORELL BARNES, J. The note in Tristam and Coote's Probate Practice (13th Ed.) p. 191, is correct. The case of In the Goods of Sowerby is reported in 65 L. T. 764, from which it appears that the fresh grant was made, limited till such time as the lunatic executor should recover his sanity; but when the matter came to be worked out in the registry, it was probably found that the more convenient course was not to limit the grant, but to let the other executor take probate, reserving power to the lunatic to apply to join in the probate, should he desire to do so on recovering his sanity. In the present case I revoke the probate, and make a fresh grant to the applicants, reserving power to Fanny Elizabeth Shaw to join in this grant, should she, on recovering her sanity, wish to do so.

MCINTYRE et al. v. PROCTOR et al.

(Supreme Court of North Carolina, 1907. 145 N. C. 288, 59 S. E. 39, 13 L. R. A. [N. S.] 438.)

Special proceedings by Stephen McIntyre and another against Lizzie G. Proctor and others to be allowed to resign, as executors of a will of Edward Knox Proctor, Jr., deceased.

HOKE, J.2 The allegations of the petition relevant to the inquiry admitted by the answer and found to be true on the hearing are as follows:

"(3) That your petitioners have collected all the assets belonging to said estate, and have paid all debts due by the said estate, and have in all respects complied with the terms and provisions of the said last will and testament, and have made all investments as therein provided, and have satisfied all legacies to be satisfied, all of which will more fully appear from the annual accounts filed by your petitioners as executors in the office of the clerk of the superior court of Robeson county, to which said reports reference is hereby made.

"(4) That your petitioners have so far administered the said trust that nothing now remains to be done except to collect the rents and profits from the real estate owned, and the dividends from the moneys invested, and to expend such portions thereof as may be necessary for the support, maintenance, and education of the family of said E. K. Proctor, Jr., as by the said will provided.

"(5) That your petitioners are informed and believe that, under the terms and provisions of the said will, the said trust cannot be finally

26 The statement of facts is omitted.

closed and settled until the youngest child of the said E. K. Proctor, Jr., attains his majority, and, inasmuch as said youngest child, Robert W. Proctor, is now of the age of about 8 years, it will be some 13 years before said trust can be finally closed and settled.

"(6) That the administration of the said period of 13 years will be very expensive to the said estate, and a heavy charge upon the said children and devisees of the said E. K. Proctor, Jr., the same to be the more considered on account of the fact that the utmost economy must be used in order that there may be property sufficient to provide a support, maintenance, and education for all of the said children until they attain their majority.

"(7) That the widow and all the children of the said E. K. Proctor, Jr., reside in the town of Lumberton, N. C., and no general or testamentary guardian has been appointed for the minor children. That all of the said children, except James D. Proctor, are infants and reside with their mother.

"(8) That James D. Proctor, eldest son of E. K. Proctor, Jr., has attained his majority, and is now engaged in the practice of law in the town of Lumberton, N. C., and the widow and children of said. E. K. Proctor, Jr., reside with him, under his care and protection.

"(9) That your petitioners believe, and so allege, that it would be to the best interests of the widow and children of the said E. K. Proc_tor, Jr., if the management of the said estate and the care and control thereof could be turned over to James D. Proctor, for the reason that the said James D. Proctor, residing as he does with the others of the family, is in a better position to know their actual necessities and to exercise greater economy in their support and maintenance than canthe present executors, and for the further reason that no commissions would be charged by him for his services in closing up the said trust and estate.

"(10) That your petitioners have consulted Mrs. Lizzie G. Proctor, widow of E. K. Proctor, Jr., and the children who are capable of understanding, and they agree with your petitioners, and are desirous, that your petitioners be allowed to resign as executors and trustees of the estate of E. K. Proctor, Jr., and that the said James D. Proctor be appointed in their place and stead.

"(11) That your petitioners have consulted the said James D. Proctor, and he is willing to assume the duties which would be imposed upon him in case of his appointment as substituted trustee of the said estate, and he is prepared to give such bond as the court may require of him as a condition precedent to this appointment.

"(12) That your petitioners are desirous of filing their last annual account, and of resigning their executorship and trusteeship in favor of the said James D. Proctor, and there are many reasons, business and sentimental, incapable of being set forth here, why it will be to the benefit of the widow and heirs at law of the said E. K. Proctor, Jr., that such change be made."

And on these facts we think the clerk correctly ruled that he had no power to accept the proposed resignation and appoint a successor. At common law, using the term in its broadest sense, an administrator and executor who had duly qualified and entered on the performance of his duties had no right at his own desire and for his own convenience to resign his office, and so put aside responsibility for the further performance of his duties. This has been directly held with us in the case of Washington, Ex'r, v. Blunt, 43 N. C. 253; and without statutory authority a clerk for a like purpose has no right to permit such resignation.

Our statutes in various sections (Revisal 1905, §§ 31-34-35-37-38) confer on the clerks the power to revoke the letters of administrations for certain reasons therein specified; section 38, containing the more general provisions on the subject, being as follows: "If it is made to appear that the person to whom the letters have been issued is legally incompetent, or has been guilty of default or misconduct in the execution of his office, or that the letters have been obtained by false and fraudulent misrepresentations." And no doubt for causes specified in the statute or equivalent causes as indicated by way of suggestion only, in Tulburt v. Hollar, 102 N. C. 406, 9 S. E. 430, the clerk could permit the officer to resign and revoke the letters on such resignation.

But the power exists for the good of the estate and its proper administration, and should only be exercised by reason of some unfitness or unfaithfulness on the part of the trustee, and never simply for his convenience or because the parties interested may desire it. While the principle is well established, both as to administrators and executors, it is more especially appropriate to the case of executors who are selected by the testator himself, usually because of his knowledge of their business capacity and his confidence in their integrity or both; and, though they have in the first instance a right to decline the office, after they have accepted and are qualified, they are not afterwards permitted to resign, and voluntarily put aside its responsibilities..

This case presents a good illustration of the doctrine and its proper application. A perusal of the will and the facts submitted in connection with the administration indicates that there is a good amount of property to be invested and managed, and that the duties incident to the trust will continue for some length of time. The testator has selected two of his friends to administer his estate, and carry out his wishes, on account of their capacity and approved faithfulness, and they will no doubt continue to justify his confidence. There is no reason alleged or shown why they should be displaced, and the judgment of the clerk should have been affirmed.

Let this be certified and order entered accordingly. Reversed.""

27 But see Marsh v. People, 15 Ill. 284 (1853), where the court said (page 287): "The court had power to remove him [the administrator] from office, and the acceptance of his resignation may be considered as an exercise of

ADMINISTRATION 28

452

SEMINE v. SEMINE.

(Court of King's Bench, 1673. 2 Lev. 90.)

Administration was granted, and the administrator by virtue thereof being possessed of a term, made a lease of the land, and after was a citation to repeal the administration, but it was affirmed; upon which sentence of affirmation an appeal was sued, and the sentence of affirmation thereby repealed, and the first administration repealed, and administration granted to another. And by HALE and the whole court, this new administrator shall not avoid the lease of the first administrator, for this is only a repeal of the sentence in the citation, and so is in the nature of a suit on the citation; and so it is all one as if the first administration had been avoided in the suit upon the citation, and not as if the appeal had originally been brought upon the first administration, which thereby had been totally annulled. 6 Co. [18b], Packman's Case.20

that power. The refusal of an administrator to perform the duties of his trust is a sufficient cause for revoking his authority and conferring it upon another; and the removal of one of several administrators, without appoint ing another in his place, devolves upon the others the entire management of the estate. The resignation may be regarded as a declaration by Mellen that he would no longer participate in the administration of the estate, and the acceptance by the court as a revocation of his authority." See, also, Thayer v. Homer, 11 Metc. (Mass.) 104 (1846); Comstock v. Crawford, 3 Wall. 396, 18 L. Ed. 34 (1865); Balch v. Hooper, 32 Minn. 158, 20 N. W. 124 (1884); 13 Prob. Rep. Ann. 325, note. as distinguished from his resignation, see Cooke v. Stevens, [1897] 1 Ch. 422; 7 Prob. Rep. Ann. 68, note. 28 For a discussion of the revocation of probate of a will, see 12 Prob. Rep. Ann. 218, note.

Ramp y. McDaniel, 12 Or. 1081885);

On the renunciation of an

29 An appeal from an order appointing an administrator suspends the order. Zimmer v. Safer, 155 Mich. 388, 119 N. W. 433 (1909).

That a revocation of probate will not be ordered on issues tried and determined at the probate, except for fraud on the court, or for some accident, mistake, or misunderstanding in the proceedings before the court, which in justice calls for a revocation, is held in Boardman v. Hesseltine, 200 Mass. 495, 86 N. E. 931 (1909). Even in the case of fraud, the person seeking rev. ocation may fail because of his delay. See Miller v. Miller's Estate, 69 Neb. 441, 95 N. W. 1010 (1903).

liable

(Court of King's Bench, 1789. 3 T. R. 125.)

This was an action on the case for money had and received to the use of the intestate, and to the use of the plaintiff as administrator, to which the defendant pleaded the general issue. And on the trial a special verdict was found, stating in substance as follows. The defendant, as treasurer of the navy, was indebted to the intestate in his lifetime in £58. 13s. 6d. for money had and received to his use. Priestman died on the 2d of June 1784. On the 13th of August 1785, one Robert Brown proved in the Prerogative Court of the Archbishop of Canterbury, a forged paper writing, dated the 18th of May 1784, purporting to be the last will of Priestman, otherwise Handy, whereby he was supposed to have appointed Brown the sole executor thereof; and a probate of that supposed will issued in due form of law, under the seal of that court, on the same day, in favor of Brown. The defendant, not knowing the will to have been forged, and believing Brown to be the rightful executor, on Brown's request paid him £58. 13s. 6d., being the whole balance then due from the defendant to Priestman. On the 21st of July 1787, Brown was called by citation, at the suit of John Priestman the father, and next of kin of the deceased, in the Prerogative Court of the Archbishop of Canterbury, touching the validity of such supposed will; and such proceedings were thereupon had in that court, that the will and probate were declared null and void; that Thomas Priestman died intestate; and that John Priestman the father was his next of kin. And on the 31st of March 1788, letters of administration of the goods, etc., of Thomas Priestman were granted by that court in due form of law to the plaintiff, as attorney of John Priestman. But whether, &c.

ASHHURST, J. I am of opinion that the plaintiff has no right to call on the defendant to pay this money a second time, which was paid to a person who had at that time a legal authority to receive it. It is admitted, that if he had made this payment under the coercion of a suit in a court of law, he would have been protected against any other demand for it; but I think that makes no difference. For as the party to whom the payment was made had such authority as could not be questioned at the time, and such as a court of law would have been bound to enforce, the defendant was not obliged to wait for a suit, when he knew that no defence could be made to it. This therefore cannot be called a voluntary payment. This is different from payments under forged bonds or bills of exchange; for there the party is to exercise his own judgment, and acts at his peril. A payment in such a case is a voluntary act, though perhaps the party is not guilty of any negligence in point of fact. But here the defendant acted under the authority of a court of law; every person is bound to pay deference to a judicial act of a court having competent jurisdiction. Here