In re the Estate of Overman

HEDRICK, Judge.

Appellant assigns as error the Court’s conclusion that the Clerk did not have jurisdiction to appoint Craven as Administrator d/b/n of Overman’s estate, and that Nationwide had standing to challenge his appointment. In 34 C.J.S., Executors and Administrators, § 1018, it is stated:

“To warrant the appointment of an administrator de bonis non, it is absolutely essential that the previous incumbency should have actually ended, and, if there is no vacancy, the appointment is void for lack of jurisdiction.”

In 21 Am. Jur., Executors and Administrators, § 774, it is stated:

“To warrant the appointment of such an administrator (administrator de bonis non) the office of administrator must be vacant; a vacancy is a jurisdictional fact; an appointment of an administrator de bonis non when there is no vacancy is absolutely void and may be so declared, even, in a collateral proceeding.”

In Edwards v. McLawhorn, 218 N.C. 543, 11 S.E. 2d 562 (1940), Justice Winborne, speaking for the North Carolina Supreme Court, said:

“The general rule is that, after an executor or administrator is appointed and qualified as such, his authority to represent the estate continues until the estate is fully settled, unless terminated by his death, or resignation, or by his removal in some mode prescribed by statute, or unless the letters be revoked in a manner provided by law.

It is also an established principle of law that to warrant the appointment of an administrator de bonis non, or de bonis non, cum testamento annexo, the office of administrator or executor must be vacant. Vacancy is a jurisdictional fact, and an appointment of either an administrator de bonis non, or an administrator de bonis non, cum testamento annexo, when there is no such vacancy is absolutely void, and may be so declared, even in a collateral proceeding.”

Appellant contends that the discharge of Mrs. Overman as the administratrix of her husband’s estate was “validly accomplished” by the order of the Clerk dated 19 March 1970, purporting to appoint Craven as Administrator d/b/n. We do not agree.

There is nothing in this order to suggest that the Clerk did anything more than attempt to appoint Craven Administrator d/b/n. The recital in the order that “ . . . the widow of the decedent [was] present, the widow having previously served as Administratrix of the estate and having been fully discharged from these duties pursuant to order of this Court” does not amount to Mrs. Overman’s resignation as Administratrix pursuant to G.S. 36-10 nor to her removal and revocation of her letters of administration pursuant to G.S. 28-32. The principle that every court, where the subject matter is within its jurisdiction, is presumed to have done all that is necessary to give force and effect to its proceedings has no application in this case where the record affirmatively shows that the original administratrix, duly appointed by the Clerk, was living, had not resigned, had not been removed, had not had her letters of administration revoked, or had not been otherwise discharged according to law. In re Davis, 277 N.C. 134, 176 S.E. 2d 825 (1970) ; Marshall v. Fisher, 46 N.C. 111. The fact that Mrs. Overman purportedly agreed and consented that an Administrator d/b/n be appointed and that she did not appeal from the order purporting to appoint Craven as such administrator, does not validate Craven’s appointment since jurisdiction may not be conferred by either waiver or consent. High v. Pearce, 220 N.C. 266, 17 S.E. 2d 108 (1941) ; Springer v. Shavender, 118 N.C. 33, 23 S.E. 976 (1896).

The suggestion that Nationwide does not have “status or standing” to challenge Craven’s appointment is meritless, since “any party interested or affected by a void judgment may attack it collaterally, in a proper case, or by a direct proceeding to have it stricken from the record as a nullity.” Reynolds v. Cotton Mills, 177 N.C. 412, 99 S.E. 240 (1919). Obviously, Nationwide, having been sued by Craven purporting to act in behalf of Overman’s estate, has a clear right to inquire as to whether plaintiff is entitled to sue.

We hold that the office of administrator of Overman’s estate was not vacant on 19 March 1970, and the Clerk had no authority to appoint Craven as Administrator d/b/n. The judgment of the Superior Court is

Affirmed.

Judges Bkock and MORRIS concur.