#### ELIZABETH ELLEDGE and Others v. ALICE HAWKINS.

(Filed 20 November, 1935.)

1. Executors and Administrators A e: C a — Where executrix has not been removed hy clerk, Superior Court may not appoint receiver for estate.

An executrix who has duly qualified is entitled to possession of the assets of the estate until removed by the clerk, even though caveat proceedings have been instituted, and the Superior Court is without authority to appoint a receiver to take over the assets of the estate upon complaint of the heirs at law alleging the insolvency of the executrix and that she was squandering the assets of the estate, although' upon the facts alleged plaintiffs might be'entitled to the removal of the executrix by the clerk.

S. Executors and Administrators C a—

The filing of a caveat suspends further proceedings in the administration of the estate, but does not deprive the executor or executrix of the right to the possession of the assets of the estate. C. S., 4161.

Devin, J., took no part in the consideration or decision of this case.

Appeal by defendant from *Finley, J.,*at Chambers in North W"ilkes-boro, N. C., on 28 December, 1934.

Eeversed.

This is an action, begun in the Superior Court of "Wilkes County, for the appointment by the court of a permanent receiver of the estate of Shady Long, deceased, and for other relief.

The action was heard on an order requiring the defendant to show cause why a permanent receiver of the estate of Shady Long, deceased, should not be appointed by the court.

From an order made by the judge appointing Ealph Duncan permanent receiver of the estate of Shady Long, deceased, and authorizing and empowering said receiver to take into his possession all the assets of said estate, including assets now in the possession of the defendant as the executrix of Shady Long, deceased, and to preserve the same until further orders in this action, the defendant appealed to the Supreme Court, assigning as errors the refusal of the judge to sustain her demurrer to the complaint, and the signing of the order.

*758
      *J. H. Whiclcer and Eugene Trivetie for •plaintiffs.*

*Elledge & Wells and Buford T. Henderson for defendant.*

CONNOR, J.

Tbe facts alleged in tbe complaint axe as follows:

Shady Long died in Wilkes County, North Carolina, on 19 October,. 1934, leaving tbe plaintiffs and tbe defendant as bis heirs at law and as distributees of bis personal estate. Shortly after bis death, tbe defendant, Alice Hawkins, offered a paper-writing for probate by tbe clerk of tbe Superior Court of Wilkes County as bis last will and testament. Tbe said paper-writing was duly probated by said clerk as tbe last will and testament of Sbady Long, deceased. Tbe defendant was named in said last will and testament as tbe executrix of Sbady Long, deceased, and has duly qualified as such executrix. As such executrix, she bas in her possession certain assets belonging to tbe estate of her testator, which she bas included in tbe inventory filed by her in tbe office of tbe clerk of tbe Superior Court of Wilkes County. She also bas in her possession certain other assets of said estate, which she bas refused to include in said inventory.

After tbe last will and testament of Sbady Long, deceased, was probated in common form, tbe plaintiffs filed a caveat to said probate, and instituted a proceeding as provided by statute in support of said caveat. This proceeding is now pending in tbe Superior Court of Wilkes County.. In said proceeding, tbe plaintiffs have alleged that at tbe time be executed tbe paper-writing propounded as bis last will and testament, Sbady Long was without mental capacity to execute a will, and that tbe execution of said paper-writing by Sbady Long was procured by tbe undue influence of tbe defendant.

Tbe defendant is insolvent, and is disposing of and squandering tbe assets of tbe estate of Sbady Long, deceased, and bas refused to account for all tbe assets of said estate which have come into her bands as bis executrix. Tbe plaintiffs pray that a receiver of tbe estate of Sbady Long, deceased, be appointed by tbe court in this action, and that such receiver be authorized and empowered to take into bis possession all tbe assets of said estate, including assets now in tbe possession of tbe defendant as tbe executrix of Sbady Long, deceased.

Tbe defendant demurred to tbe complaint on tbe ground (1) that tbe court was without jurisdiction of tbe action, and (2) that tbe facts stated in tbe complaint are not sufficient to constitute a cause of action. Tbe demurrer was overruled, and on her appeal to this court tbe defendant assigns same as error. This assignment of error is sustained.

Conceding without deciding that on tbe facts alleged in tbe complaint tbe plaintiffs are entitled to tbe removal of tbe defendant as executrix of Sbady Long, deceased, we must bold that plaintiffs cannot have this *759relief in tbis action. Tbe relief may be bad only by an order of tbe clerk of tbe Superior Court of Wilkes County. See *In re Battle’s Estate,*158 N. C., 388, 74 S. E., 23. Until tbe defendant bas been removed as executrix by tbe clerk, sbe is entitled to tbe possession of tbe assets belonging to tbe estate of ber testator, altbougb further proceedings by ber in tbe administration of tbe estate were suspended by tbe filing of tbe caveat. C. S., 4161. Tbe clerk may, upon sufficient facts found by bim, require tbe defendant to file a bond in form and in a penal sum sufficient to protect tbe estate, and upon ber failure to file sucb bond, order ber removal.

Tbe order in tbis action is

Eeversed.

DeviN, J\, took no part in tbe consideration or decision of tbis case.