#### HOWARD R. HARRISON, Administrator of MAE GALLATIN EBY, v. FAULK CARTER.

(Filed 31 January, 1946.)

1. Executors and Administrators § 3—

Wliere, after letters of administration have been issued, a will is found and probated and letters issued thereon, the letters of administration must be revoked, G. S., 28-31; however, all acts done by the administrator in good faith prior to the discovery and probate of the will are valid and binding.

2. Executors and Administrators § 4: Abatement and Revival § 11—

A cause of action which survives against successor personal representatives of an estate likewise survives in their favor. G. S., 28-172, -181.

3. Same—

Upon the revocation of letters the clerk of the Superior Court is required immediately to appoint a successor, G. S., 28-33, and the law contemplates a continuity of succession until the estate has been fully administered.

4. Same: Death § 4—

A cause of action for wrongful death properly instituted does not abate upon the death, resignation or removal of the personal representative who instituted the action, but the action survives to his successor. G. S., 1-74.

5. Same—

The personal or legal representative of an estate in instituting an action is a formal or nominal, although a necessary, party, and acts in the capacity of a trustee or agent for the estate, or for the beneficiaries of the estate when the recovery, as in case of actions for wrongful death, is not an asset of the estate.

6. Same — Where action for wrongful death is instituted within time allowed, third successive representative may be made pai>ty and maintain action.

The duly appointed administrator of the estate of deceased instituted action for wrongful death within the time allowed. More than a year thereafter it was discovered that deceased had left a will, which was duly probated in the state of her residence. On motion of defendant in the action for wrongful death, an order was entered revoking the letters and directing the administrator to show cause, and on the same day an administrator c. *t. a.*was appointed. At the hearing on the motion to show cause it was ordered that the order of revocation remain in full force and effect. Eighteen days thereafter the administrator c. *t. a.*resigned, having made no reports and taken no steps in regard to prosecuting the action. The original administrator at the instance of the beneficiary of the estate was appointed administrator *o. t. a., d.*6. *'n. Held:*The motion of the administrator *o. t. a., d.*6. *n.,*that he be permitted to enter the action for wrongful death as plaintiff should have been allowed.

*37Appeal by plaintiff from *Sinic, J.,*at May Term, 1945, of Mooee.

Civil action for wrongful death.

1. Mae Gallatin Eby, a citizen of Dauphin County, Pa., died in Moore County, N. C., 24 February, 1942, when the Sand Hill Hotel at Aberdeen, N. C., owned by defendant, Faulk Carter, was burned. The deceased was a guest of the hotel at the time of her death, and plaintiff alleges that her death was caused by the negligence of the defendant.

2. On 22 January, 1943, Howard E. Harrison, a citizen of Moore County, N. C.,- was duly appointed administrator of the estate of Mae Gallatin Eby, by the clerk of the Superior Court of Moore County, and gave bond as required by law, and forthwith on 22 January, 1943, said administrator instituted this action against the defendant for the wrongful death of his intestate, Mae Gallatin Eby. The summons and verified complaint were served on the defendant. Answer was filed. An amended complaint and an amended answer were filed.

3. Thereafter, about 29 May, 1944, it was discovered that Mae Galla-tin Eby left a will, which had been duly probated in Dauphin County, State of Pennsylvania, on 30 June, 1942. An exemplified copy of the will was filed in the office of the clerk of the Superior Court of Moore County, N. C., and duly recorded in the Book of Wills.

4. On 22 August, 1944, the clerk of the Superior Court of Moore County, N. C., on motion of the defendant in this action, entered an order revoking the letters of administration issued to Howard E. Harrison on 22 January, 1943, and ordered Howard E. Harrison to appear before said clerk on 5 September, 1944, at 3 :00 o’clock p.m., and show cause, if any, why the order of revocation should not remain in full force and effect. On the same day, 22 August, 1944, the clerk appointed E. J. Burns administrator *c. t. a.*of the estate of Mae Gallatin Eby, and issued such letters of administration to him.

5. The hearing on the motion to show cause was held at the request of Howard E. Harrison, on 6 September, 1944, all parties being present and represented by their respective attorneys. Whereupon, the clerk entered an order to the effect that the former order entered 22 August, 1944, shall remain in full force and effect, and that the letters of administration on the estate of Mae Gallatin Eby heretofore issued to the said Howard E. Harrison shall be and remain recalled and revoked, and that the letters of administration *c. t. a,,*on the estate of the said Mae Galla-tin Eby, deceased, issued to E. J. Burns, remain in full force and effect.

6. E. J. Burns, as administrator c. *t. a.*of the aforesaid estate, filed his resignation with the clerk of the Superior Court of Moore County on 9 September, 1944, and accordingly the clerk accepted the resignation. E. J. Burns made no reports, and took no action looking to the *38prosecution of tbis action against tbe defendant. In bis letter of resignation to tbe clerk, be stated be was a stranger to tbe matter and tbat Ben Eby, tbe sole beneficiary under tbe will, bad requested tbat bis personal friend, Howard R. Harrison, be appointed administrator *c. t. a.*of tbe estate, and be requested tbe appointment of Harrison as sucb administrator, wbicb request was also made to tbe clerk in writing by tbe said Ben Eby. Whereupon, Howard R. Harrison was appointed as administrator *c. t. a., d. b. n.,*of tbe estate of Mae Gallatin Eby, deceased, accepted tbe appointment, and duly qualified as sucb administrator, and sucb letters of administration were issued on tbe . day of September, 1944.

7. On 20 September, 1944, Howard R. Harrison, administrator *c. t. a., d. b. n.,*filed a motion praying tbat be be permitted to enter tbis action as plaintiff, reciting tbe fact tbat as administrator without tbe will annexed be bad begun tbe action and brought tbe suit in good faith and tbat under tbe law be should be and act as plaintiff and prosecute said action, as will appear from tbe records on file in tbis court.

Tbe clerk held tbat since E. J. Burns was not appointed administrator *c. t. a.*of tbe estate of Mae Gallatin Eby until after tbe expiration of more than twelve months from tbe death of Mae Gallatin Eby, and Howard R. Harrison was not appointed administrator *c. t. a., d. b. n.,*until after tbe resignation of E. J. Burns, as administrator c. *t. a.,*tbis action cannot be maintained, and tbat Howard R. Harrison, administrator c. *t. a., d. b. n.,*cannot legally be made a party to tbis action, and denied tbe motion and dismissed tbe action. On appeal to tbe Superior Court, bis Honor approved tbe order of tbe clerk and confirmed it in all respects. From judgment so entered, Howard R. Harrison, administrator *c. t. a., d. b. n.,*appeals to tbe Supreme Court.

*Douglass & Douglass and Seawell & Seawell for plaintiff.*

*Sharp & Sharp, U. L. Spence, and Varser, McIntyre & Henry for defendant.*

Denny, J.

Tbe sole question for our determination on tbis appeal is whether or not Howard R. Harrison, administrator *c. t. a., d. b. n.,*of Mae Gallatin Eby, deceased, has tbe legal right to be made tbe plaintiff in tbis action and to prosecute tbe same.

Tbis identical question does not seem to have been passed upon heretofore by tbis Court. Nevertheless we think tbe court below did err in signing tbe judgment denying tbe motion of Howard R. Harrison, administrator *c. i. a., d. b. n.,*of Mae Gallatin Eby, deceased, to be substituted as plaintiff in tbe action.

*39Tbis action, for tbe wrongful death of Mae Gallatin Eby was duly and properly instituted by tbe administrator of tbe decedent’s estate witbin one year after sucb death, as required by G. S., 28-173.

Tbe appellee contends tbat upon tbe facts in tbis case, tbe Court is without power to convert tbe pending action, tbat cannot be maintained, into a new one by admitting a new party plaintiff, citing *Merrill v. Merrill,*92 N. C., 657; *Clendenin v. Turner,*96 N. C., 416; *Best v. Kinston,*106 N. C., 205, 10 S. E., 997; *Hall v. R. R.,*146 N. C., 345, 59 S. E., 879; *Gulledge v. R. R.,*147 N. C., 234, 60 S. E., 1134; *S. c.,*148 N. C., 568, 62 S. E., 732; *Hall v. R. R.,*149 N. C., 108, 62 S. E., 899; *Bennett v. R. R.*159 N. C., 345, 74 S. E., 883; *J. H. Hood, Admr., v. Amer. Tel. & Tel. Co.,*162 N. C., 92, 77 S. E., 1094; *Reynolds v. Cotton Mills,*177 N. C., 412, 99 S. E., 240. We do not concede tbat tbe pending action cannot be maintained. Moreover, each of tbe above cited eases is distinguishable from tbe one here presented. It will be observed upon examination of tbe above authorities, tbat either a new cause of action was involved or tbe original action was instituted by a party without legal authority to institute it. Tbat is not tbe situation here. Tbis action was brought by an administrator legally appointed by tbe probate court having exclusive jurisdiction of the subject matter. Moreover, pending tbe appointment and qualification of an administrator or tbe probate and filing of a will, a collector may be appointed in order tbat an action for wrongful death may be instituted within tbe statutory time. G. S., 28-25; *In re Palmer’s Will,*117 N. C., 133, 23 S. E., 104; *Gulledge v. R. R., supra.*

It is provided by statute in tbis State, tbat whenever letters of administration have been issued and a will is subsequently probated and letters issued thereon, tbe letters of administration must be revoked. G. S., 28-31. Tbis same statute, however, provides tbat all acts by tbe administrator, done in good faith, are valid. *Shober v. Wheeler,*144 N. C., 403, 57 S. E., 152.

Tbe acts of administration done prior to tbe discovery and probate of a will, in the due course of administration, “are binding on the parties interested in tbe estate, including tbe executor in tbe will.” 21 Am. Jur., sec. 165, p. 466, citing numerous authorities. Furthermore, it is provided in G. S., 28-181, “In case tbe letters of administration of an executor, administrator or collector are revoked, pending an action to which be is a party, tbe adverse party may, notwithstanding, continue tbe action against him in order to charge him personally. If sucb party does not elect so to do, witbin six months after notice of sucb revocation, tbe action may be continued against the successor of tbe executor, administrator or collector in tbe administration of tbe estate, in tbe same manner as in case of death.” A cause of action which survives against *40successor personal representatives of an estate likewise survives in favor of successor personal representatives of an estate. G. S., 28-172; *Suskin v. Trust Co.,*214 N. C., 347, 199 S. E., 276. And, where an action is brought to recover assets by “a general executor or administrator, who afterwards dies, resigns or is removed,” the action “may be revived in the name of his successor.” Schouler on Wills, Executors and Administrators, sixth edition, Vol. 3, sec. 2144. While any sum recovered for wrongful death is not a part of the assets of the decedent’s estate, nevertheless such sum can only be recovered in the name of decedent’s personal representative, and must be distributed under the laws of intestacy in this State. G. S., sections 28-173 and 28-176; *Neill v. Wilson,*146 N. C., 242, 59 S. E., 674; *Hines v. Foundation Co.,*196 N. C., 322, 145 S. E., 612; *Hanes v. Sou. Public Utilities Co.,*191 N. C., 13, 131 S. E., 402; *Pearson v. Stores Corp.,*219 N. C., 717, 14 S. E. (2d), 811.

Once a personal representative of an estate is duly appointed, if such representative dies, resigns or is removed, the law contemplates a continuity of succession until the estate has been fully administered; and upon the death, resignation or removal of a personal representative, who has properly brought an action for wrongful death, the action does not abate. G. S., 1-74. And G. S., 28-33, requires the clerk of the Superior Court, in all cases of revocation of letters, to appoint immediately some person to succeed in the administration of the estate. It is immaterial in so far as the continuity of the succession is concerned, whether the successor be an administrator *d. b. n.,*an executor, an administrator *c. t. a.,*an administrator *c. t. a., d. b. n.,*or a collector. The intent and purpose of the law relative to administration of estates is to protect and preserve the estate and all rights incident thereto. This is necessarily true because beneficiaries of estates must act through personal or legal representatives of the decedent’s estate, and such representatives in turn act under the supervision of probate courts. And while the right to bring an action for the benefit of an estate or the beneficiary thereof, is given by statute to the personal or legal representative of such estate; such representative, though a necessary, is, none the less, a formal or nominal party, acting in the capacity of a trustee or agent of the beneficiary of the estate. Sherman and Redfield on Negligence, Vol. 4, sec. 826, p. 1874; *Baker v. R. R.,*91 N. C., 308; *Broadnax v. Broadnax,*160 N. C., 432, 76 S. E., 216; *Avery v. Brantley,*191 N. C., 396, 131 S. E., 721.

Has the right of the appellant to prosecute this action been impaired because the defendant was the movent in obtaining the revocation of the original letters of administration and had a friendly administrator *c. t. a.*appointed as successor to the administrator, and who did not have himself made a party to the action? We do not think so. E. J. Burns held his letters as administrator *c. t. a.*of the estate for only 18 days, when *41be resigned. It is clearly indicated by him in his resignation that he held his appointment merely as a straw man. He stated he was a stranger to the proceedings and had done nothing for or in behalf of the estate. He further stated that he was not the choice of the sole beneficiary under Mrs. Eby’s will, for personal representative of the estate, but that the original administrator was the choice of the sole beneficiary, and that he had so indicated his choice in writing to the clerk of the Superior Court. "Whereupon, Howard E. Harrison, said original administrator, was duly appointed administrator *c. t. a., d. b. n.,*of said estate, and is now acting in that capacity. It would be a travesty upon the administration of justice if a defendant in an action for wrongful death could, without notice, obtain the revocation of the letters of a personal representative of an estate, who had brought an action against him and have a successor appointed who was friendly to the defendant, and thereby defeat the action. The law is not so impotent. “Where an executor or administrator has been removed or discharged, the suit should be continued in the name of his successor in office.” 1 C. J. S., sec. 112 (a), p. 159; *Kearns v. Dean,*19 Pac., 817, 77 Cal., 555; *Skalski v. Krieger,*159 N. E., 851, 26 Ohio App., 186; 1 Am. Jur., sec. 177, p. 112; 1 C. J., sec. 227, p. 145 and p. 149, note 88; *Taylor v. Savage,*1 How., 282, 11 L. Ed., 132; *Lunsford v. Lunsford,*122 Ala., 242, 25 S., 171; *More v. More,*127 Cal., 460, 59 P., 823; *Tray Nat. Bank v. Stanton,*116 Mass., 435; *Cox v. Martin,*75 Miss., 229, 36 L. R. A., 800; *Burlington & M. R. Co. v. Crockett,*17 Neb., 370, 24 N. W., 219; *Trimmer v. Todd,*52 N. J. Eq., 426, 28 A., 583; *Heywood v. Ogden Motor Co.,*71 Utah, 417, 266 Pac., 1040, 62 A. L. R., 1232. The appellant’s motion should have been allowed.

The judgment of the court below is

Eeversed.