#### JOHN SPURGEON SNIPES and WILLIAM HENRY SNIPES, v. ESTATES ADMINISTRATION, INC., Administrator of MOSES SHAPIRO, Deceased, A. SHAPIRO, M. SOSNIK and S. SOSNIK.

(Filed 12 January, 1944.)

1. Parties §§ 10, 11: Appeal and Error § 3a—

An appeal lies from an order of tlie Superior Court either making or refusing to make additional parties, when such order affects a substantial right of the appellant.

2. Parties §§ 10, 11: Pleadings § 21—

Over an objection the court has no authority to correct a pending action, which cannot be maintained, into a new and independent action by admitting a party who is solely interested as plaintiff. It is not permissible, except by consent, to change the character of the action by the substitution of one that is entirely different.

3. Executors and Administrators §§ 8, 9—

The law does not rest the title to the property of a person who dies intestate in his next of kin, but in his administrator. If the administrator dies before completion of the administration, the title to such property does not rest in *Ms*administrator, but in the administrator *de bonis non*of the first intestate, and so on indefinitely, until the estate is settled.

4. Descent and Distribution § 11J4 : Executors and Administrators § 27—

The next of kin of an intestate have a cause of action for their distributive shares against the administrator of the intestate, which cause of action does not survive, on the death of such administrator, against *Ms*administrator, but against the administrator *de bonis non*of the first intestate.

5. Same—

Upon the death of an administrator, the better procedure is for the next of kin to bring an action for an accounting against *Ms*administrator, only after the administrator *de bonis non*of the first intestate has refused to do so. However, should the administrator *de bonis non*fail to bring such action, the next of kin may bring the same and the court will make the administrator *de bonis non*a party defendant and refuse to dismiss the action. This Court may remand such a case for the making of necessary parties.

Appeal by defendants from *Dixon, Special Judge,*at June Term, 1943, of Forsyth.

The plaintiffs allege they are the sons of Bruce Snipes, a resident of Forsyth County, who died intestate in 1924.

Moses Shapiro was appointed administrator of the estate of Bruce Snipes on 7 May, 1929.

In 1932, Moses Shapiro, administrator of the estate of Bruce Snipes, deceased, instituted a proceeding in the Superior Court before the Clerk entitled as follows: “Moses Shapiro, Administrator of Bruce Snipes, *778deceased, *v.*James W. Snipes, *et ais.”*Tbe defendants in tbe proceeding included tbe brothers and sisters of Bruce Snipes, deceased, and others, including these plaintiffs. It is alleged that at the time of the institution of the proceeding, John Spurgeon Snipes was 13 years of age, and was residing in Oxford, N. 0., and that William Henry Snipes at the time said proceeding was instituted was 11 years of age and resided at Newton, N. 0., and that said administrator knew, or could have ascertained by the slightest-inquiry from the other defendants, of their whereabouts. A guardian *ad litem*was appointed for these minors, but no summons was served upon either of them, personally or by publication, as required by -law. Thereafter an issue as to whether or not these plaintiffs were the sons of Bruce Snipes, deceased, was submitted to a jury and answered in the negative. Whereupon the'administrator proceeded to pay substantially all of the assets of the estate of Bruce Snipes, deceased, to his brothers and sisters.

On October 2Y, 1939, J. M. Wells, Jr., was appointed administrator *d. b. n.*of Bruce Snipes, deceased, Moses Shapiro having died some time prior thereto.

It is further alleged that this action was instituted promptly by these plaintiffs against the administrator of the estate of Moses Shapiro, deceased, and the bondsmen of Moses Shapiro as administrator of Bruce Snipes, deceased, after they ascertained that Bruce Snipes had left an estate.

The plaintiffs seek to have the judgment adjudging them not the children of Bruce Snipes vacated and set aside and that they be adjudged the legitimate sons of Bruce Snipes and entitled to his estate, and for judgment against Estates Administration, Inc., administrator of Moses Shapiro, deceased, and the bondsmen of Moses Shapiro, administrator of Bruce Snipes, deceased, namely, A. Shapiro, M. Sosnik and S. Sosnik, for the sum of $4,618.13, together with interest at the rate of 6% from 1 January, 1932.

The defendants appeal from the refusal of his Honor to dismiss the action on the ground that it should have been instituted by J. M. Wells, Jr., administrator *d. b. n.*of the estate of Bruce Snipes, deceased, and upon the further ground that his Honor granted the motion of the plaintiffs to make J. M. Wells, Jr., administrator *d. b. n.*of the estate of Bruce Snipes, deceased, a party defendant.

*Dallace McLennan and W. P. Sandridge for plaintiffs.*

*Ratcliff, Vaughn, Hudson & Ferrell for defendants.*

DeNNY, J.

It must be conceded that the plaintiffs cannot maintain this action if the court erred in making J. M. Wells, Jr., administrator *d. b. n.*of the estate of Bruce Snipes, deceased, a party defendant. If *779tie allegations of the complaint are true, and the administrator *d. b. n.*had knowledge of the facts alleged, it was his duty to have brought an action for the relief sought herein. However, it does not appear from the record that the administrator *d. b. n.*of the estate of Bruce Snipes, deceased, was consulted prior to the institution of this action. He was requested by the plaintiffs to bring an action for the relief sought herein, after this action was instituted, but he declined to do so, whereupon he was made a party defendant in the pending action.

Under our decisions an appeal lies from an order of the Superior Court either making or refusing to make additional parties, when such order affects a substantial right of the appellant. *Rollins v. Rollins,*76 N. C., 264; *Stephenson v. Peebles,*77 N. C., 364; *Lytle v. Burgin,*82 N. C., 301; *Keathly v. Branch,*84 N. C., 202; *Merrill v. Merrill,*92 N. C., 657; *Jones v. Asheville,*116 N. C., 817, 21 S. E., 691.

It has been held, as stated in the case of *Street v. McCabe,*203 N. C., 80, 164 S. E., 329, that “'Whenever objection is made the court has no authority to convert a pending action which cannot be maintained into a new and independent action by admitting a party who is solely interested as plaintiff. It is not permissible, except by consent, to change the character of the action by the substitution of one that is entirely different. *Merrill v. Merrill, supra; Clendenin v. Turner,*96 N. C., 416; *Hall v. R. R.,*146 N. C., 345; *Bennett v. R. R.,*159 N. C., 345; *Reynolds v. Cotton Mills,*177 N. C., 412; *Jones v. Vanstory,*200 N. C., 582.”

The appellant contends that the making of the administrator *d. b. n.*of the estate of Bruce Snipes, deceased, a party defendant, converts the pending action into a new one and that under the decision of *Merrill v. Merrill, supra,*the action must be dismissed. We cannot so hold. In the *Merrill case, supra,*J. E. Merrill died intestate in 1866, and John Merrill was duly appointed administrator of his estate. In 1873, the next of kin of J. E. Merrill instituted an action against. John Merrill, administrator of the estate of J. E. Merrill, deceased, for the purpose of obtaining an account and settlement of the estate. Eepeated orders of reference were entered, reports made, and each in its order set aside. John Merrill died in 1881. Perry Merrill was duly appointed administrator of the estate of John Merrill, deceased, and named defendant in the action. Afterwards, at the Fall Term, 1883, by consent of all parties, the action was again referred. On 24 August, 1884, Edward Shipman was duly appointed administrator *d. b. n.*of the estate of J. E. Merrill, deceased, and thereafter applied to the court to be made a party plaintiff in the pending action. The request was granted and the defendant appealed. The Court said: “It appears from the record, that the plaintiffs, the next-of-kin of J. E. Merrill, deceased, had a cause of action against the administrator of his estate, John Merrill, but when the latter *780died, pending tbe proceeding and before be bad completed bis administration, tbeir cause of action against bim did not survive against tbe administrator of bis estate, tbe present defendant. Tbe defendant, as administrator, beld and was charged witb any assets in bis bands belonging to tbe estate of J. R. Merrill, not for bis next-of-kin, but solely for tbe administrator *de bonis non*of bis estate. It is well settled upon principle and authority, that tbe law does not vest tbe title to tbe property of a person who dies intestate in bis next-of-kin, but in bis administrator. If tbe administrator should die before be bad completed tbe administration, tbe title to sucb property does not vest in bis administrator, but in tbe administrator *de bonis non*of tbe first intestate, and so on indefinitely, until tbe estate in tbe bands of tbe first, or some subsequent administrator *de bonis non,*shall be completely settled and distributed according to law. Tbe next-of-kin of tbe intestate, cannot proceed against tbe administrator of bis deceased administrator for a settlement and their distributive shares; they must go against tbe administrator *de bonis non*of tbe intestate whose distributees they are, and plainly, because tbe title to tbe assets, in whatever shape to be distributed, is in bim. To this effect, without exception, are all tbe decisions upon this subject in this State, as well those decided before, as those decided after tbe adoption of Tbe Code method of procedure, blending law and equity.” Tbe Court further beld that: “Tbe next-of-kin plaintiffs . . . bad a cause of action at tbe time tbe action began against bis intestate, who was tbe administrator under whom they claim, as distributees; when be died, tbeir cause of action did not survive against *Ms*administrator, but against tbe administrator *de bonis non*of tbe intestate under whom they claim. This action did not necessarily abate — they might have made tbe administrator *de bonis non*a party defendant; indeed, they ought to have done so, as be was tbe only person whom they could then properly sue — tbe law vested tbe title to tbe assets in bim, and to bim they must look for tbeir distributive shares.” Therefore, it is apparent that tbe action would not have been dismissed if tbe administrator *d. b. n.*of tbe estate of J. R. Merrill bad been made a party defendant instead of having been made a party plaintiff. Consequently, under tbe facts disclosed on this record and in view of tbe character of tbe relief sought, it is proper but not mandatory that tbe administrator *d. b. n.*shall bring tbe action, but it is necessary for bim to be a party to tbe action, either as tbe plaintiff or as a party defendant, in order to prevent a dismissal thereof. *Wilson v. Pearson,*102 N. C., 290, 9 S. E., 707; *Hardy v. Miles,*91 N. C., 131; *Lansdell v. Winstead,*76 N. C., 366. Tbe better, and more orderly, procedure is for tbe next of kin to bring sucb action only after tbe administrator *d. b. n.*has refused to do so. However, we are *not*advertent *to any*case, and tbe appellants cited none, where this Court bad dismissed an action of *781tbis character brought by the next of kin, for lack of necessary parties, where the administrator *d. b. n.*was named a party defendant.

In the case of *Hardy v. Miles, supra,*the action was brought in the identical manner adopted by these plaintiffs, for the purpose of securing a distributive share of the estate of William Miles, deceased, and to vacate and set aside a decree against the plaintiff, entered in a proceeding in the course of the administration of the estate, to which the plaintiff alleged he was not a party. The defendant in the action was the administrator of the deceased executor of the last will and testament' of William Miles, deceased, who appealed from an adverse verdict. This Court held: “The plaintiff’s action cannot be sustained with the present parties. We hold that the administrator *de bonis non, cum testamento annexo,*of William Miles, deceased, is a necessary party. But, so voluminous is the record in the case, ... to. save the parties the repetition of the trouble and vexation they have already encountered, we are of the opinion it is just and proper that the case should be remanded that amendments should be made, so as to make the administrator *d. b. n.*of William Miles a party to the action. . . . But in *Murphy v. Harrison,*65 N. C., 246, it is held that where the administrator refuses to bring an action to surcharge and falsify an account, by which the estate of his intestate has been injured, the legatees or next of kin may bring the action; but in doing so, they must make the administrator or executor a party defendant. This case would seem to come within the principle decided in that case. There, the administrator refused to act, and he could not be made a party plaintiff without his consent, and yet the plaintiffs, the next of kin, had a right to have the account surcharged and falsified. Here, there is no administrator *d. b. n.*joined in the action, whether because there was none, or, if one, he refused to act, does not appear; but the plaintiff has sustained a wrong which the law would not be true to itself if it did not furnish him a remedy to redress. . . . Our conclusion is that the cause should be remanded to the Superior Court that the administrator *de bonis non, cum testamento annexo,*of William Miles, if there be one, may be made a party defendant; and if not, that he may be made a party when appointed.”

In the instant case the court below has done what this Court said was necessary to be done in the above case, in respect to parties, in order to maintain the action.

In the case of *Tulburt v. Hollar,*102 N. C., 406, 9 S. E., 430, cited in appellant’s brief, it appears that the administrator *cl. b. n.*of the intestate of the deceased administrator was not a party to the action. While the Court said it was not necessary to determine the question, it did state, relative to an action by the next of kin against the administrator of a'deceased administrator, that the action cannot be maintained by the next of kin, distributees or creditors. The ease did not, however, pass *782upon whether or not the action might have been maintained if the administrator *d. b. n.*of the estate of J. N. Tulburt, deceased, had been made a party defendant. It will be noted that in the case of *Lansdell v. Winstead, supra,*and cited with approval in *Ham v. Kornegay,*85 N. C., 119, it is said: “The rule is inflexible that the next of kin cannot call for an account and distribution of an intestate’s estate without having an administrator before the Court.”

In the present action, if the relief sought is obtained, the assets of the estate of Bruce Snipes, deceased, will not be recovered by these plaintiffs directly, but said assets will belong to J. M. Wells, Jr., administrator *d. b. n.*of said estate and administered by him as provided by law, and the plaintiffs will receive from said administrator their distributive share of said estate.

Where the ends of justice require it, the Court may remand a cause to the end that a necessary party or parties may be brought in, in order to maintain the action. *Cheshire v. First Presbyterian Church,*221 N. C., 205, 19 S. E. (2d), 855; *Hardy v. Miles, supra.*

We have carefully considered all the cases cited by both the appellants and the appellees in their excellent briefs, and we are of the opinion that, on the facts disclosed in this record, the order of the court below refusing to dismiss the action and granting plaintiffs’ motion to make J. M. Wells, Jr., administrator *d. b. n.*of the estate of Bruce Snipes, deceased, a party defendant, should be

Affirmed.