#### JACK EDWARDS, Administrator c. t. a. and d. b. n. of IRA J. ERIZZELLE, Deceased, v. R. H. McLAWHORN.

(Filed 27 November, 1940.)

1. Executors and Administrators § 2c — Clerk is without jurisdiction to appoint administrator c. t. a., d. b. n., until vacancy has occurred by death, resignation, removal, or discharge of executor.

Since a person to whom letters testamentary have been issued has authority to represent the estate until his death, resignation or until he has been removed or the letters testamentary revoked in accordance with statutory procedure, the appointment by the clerk of an administrator e. *t. a., d.*5. *n.,*upon petition of the residuary legatee alleging failure of the executor to account to the estate for rents and profits, is void, the clerk being without jurisdiction to make the appointment.

2. Same—

The filing of a “final report” by an executor does not have the effect of removing him from office if in fact the estate has not been fully settled, and therefore the filing of the report does not create a vacancy and does not give the clerk authority to appoint an administrator *e. t. a., d. T>. n.*

*5443. Executors and Administrators § 4—

The procedure to remove an executor or administrator for default or misconduct is by order issued by tbe clerk to tbe executor or administrator to show cause, and in sueb proceeding tbe respondent must be given notice and an opportunity to be beard, with right of appeal. C. S., 31.

4. Executors and Administrators § 2c — Appointment of administrator c. t. a., d. b. n., before termination of executor’s authority to represent estate is void and may be collaterally attacked.

This action was instituted by plaintiff as administrator c. *t. a., d.*6. *n.,*against tbe executor for alleged failure of the executor to account to tbe estate for rents and profits. It appeared that plaintiff’s appointment was made before tbe executor was removed and prior to the termination of tbe executor’s power to represent tbe estate. *Held:*Tbe clerk was without jurisdiction to appoint plaintiff, and tbe appointment was void and is subject to collateral attack, and therefore plaintiff’s action could have been dismissed by tbe court *ex mero motu*and the dismissal of tbe action upon motion of defendant is without error.

5. Courts § Id—

Whenever the court perceives that it is without jurisdiction in tbe cause it may dismiss tbe action *ex mero motu*and therefore, *ex necessitate,*may dismiss same upon motion of defendant.

Appeal by defendant from *Bone, J.,*at May Term, 1940, of Pitt.

Civil action for recovery for rents and profits allegedly bad and received for use and benefit of tbe estate of Ira J. Erizzelle, deceased.

When tbe action came on for bearing in tbe trial court and after tbe reading of tbe pleadings, “tbe defendant moved to dismiss tbe action upon tbe ground tbat tbe appointment of Jack Edwards as administrator *c. t. a.*and *d. b. n.*of Ira J. Frizzelle, deceased, is void, and offered in support of said motion tbe record.”

Pertinent facts appearing of record sufficient for consideration of tbe question raised are substantially these: Ira J. Erizzelle, of Pitt County, died in 1929, leaving a last will and testament in wbicb be named Herman MeLawborn, who is tbe defendant herein, R. H. MeLawborn, as executor. Tbe will was duly probated. Herman MeLawborn qualified as executor and letters testamentary were issued to him on 2 March, 1929, and be entered upon tbe duties of executor, and on 25 October, 1932, filed in tbe office of clerk of Superior Court of Pitt County what is denominated “Final Report,” in wbicb tbe last item appearing is tbe “Amount in First National Bank of Ayden, 428.38.” Tbe report is sworn to and appears of record in tbe “Book of Settlements,” but, in connection therewith, there is no order of tbe clerk.

Under tbe will of Ira J. Frizzelle, bis land in Pitt County “known as tbe Tuten Place” is devised to Herman MeLawborn, in trust for purposes therein set forth.

*545In July, 1938, Nannie I. Frizzelle, wbo is described as tbe only next of kin of tbe said Ira J. Frizzelle and residuary legatee in bis will, filed in Superior Court of Pitt County, before tbe clerk, a petition in wbicb sbe alleged in brief tbe foregoing facts, and further:

“5. Tbat as your petitioner is advised and believes, there is still due and owing the estate of tbe said Ira J. Frizzelle, wbicb should be recovered for tbe use and benefit of tbe residuary legatee, a considerable amount of rents and profits accruing from tbe Tuten farm from 1931 up to and including tbe year 1937, and wbicb were wrongfully converted by E. H. McLawhorn, tbe former executor and trustee as aforesaid, during bis possession and retention of tbe farm;

“6. Tbat in order to properly administer said estate, and to collect tbe aforesaid assets due and owing said estate, it is necessary for an administrator c. *t. a.*and *d. b. n.*to be appointed to tbe end tbat tbe estate of tbe said Ira J. Frizzelle may be properly administered.”

Further, tbe petitioner “recommends tbat Jack Edwards be appointed administrator *c. t. a.*and *d. b. n.*with all tbe power and authority vested by law in such administrator in such case.” Thereafter, on 4 October, 1938, upon application of Jack Edwards, tbe clerk of Superior Court of Pitt County “ordered and adjudged tbat Jack Edwards, *c. t. a.,*be appointed administrator of tbe estate of Ira J. Frizzelle, deceased, upon entering into bond in tbe sum of $1,000.00 . . .” Upon Jack Edwards taking tbe oath of administrator tbe clerk issued to him letters of administration, *“c. t. a., d. b. n.,*of tbe estate of said deceased.”

Thereupon, on 4 October, 1938, Jack Edwards, as administrator *c. t. a.*and *d. b. n.*of Ira J. Frizzelle, deceased, instituted this action against Herman McLawhorn, as E. H. McLawhorn, for tbe purposes set forth in tbe petition of Nannie I. Frizzelle as above stated. In tbe complaint filed be alleges, among other things: “1. Tbat tbe plaintiff ... is tbe duly qualified and acting administrator c. *t. a.*and *d. b. n.*of tbe late Ira J. Frizzelle, wbo died domiciled in Pitt County on tbe.day of . , 1929.” Tbe defendant, in answer thereto, avers: “Tbat paragraph 1 of tbe complaint is denied, except in so far as it conforms to tbe record.”

Tbe court below denied tbe motion, and defendant excepted. Then, after disposing of other questions, and during tbe progress of tbe trial, tbe court being of opinion tbat tbe action involves a detailed accounting and is a case for reference, “ordered, adjudged and decreed: 1st. Tbat tbe defendant’s motion to dismiss tbe action on tbe ground tbat tbe appointment and qualification of tbe plaintiff as administrator is void, be and tbe same is hereby denied”; and after ruling upon other matters, ordered a reference.

*546Defendant appeals therefrom to the Supreme Court and assigns error.

*Albion Dunn for plaintiff, appellee.*

*J. B. James and J. A. J ones for defendant, appellant.*

WiNBORNE, J.

These questions are determinative of this appeal: (1) Has the clerk of the Superior Court jurisdiction to appoint an administrator *c. t. a., d. b. n.,*of an estate, before the executor, who has qualified upon the same estate and entered upon the duties of his office, shall have been removed by order of the clerk, or before letters testamentary issued to him shall have been revoked by order of the clerk? (2) If not, does the filing by the executor of a final report of the administration of the estate have the effect of removing him from office, if in fact the estate has not been fully settled? (3) If not, when, in the trial of an action instituted by a party, as administrator *c. t. a., d. b. n.,*who has been appointed as such before there is an order removing the executor, it is made to so appear to the court, should the court *ex mero motu,*or upon motion of the defendant, dismiss the action without proceeding-further with the trial? The first and second questions are properly answered in the negative, and the third in the affirmative.

In this State it is provided by statute that the clerk of the Superior Courts of each county has jurisdiction within his county to take proofs of wills and to grant letters testamentary, letters of administration with will annexed and letters of administration' in cases of intestacy, C. S., 1 and 938; to revoke letters testamentary and of administration, C. S., 30, 31, 32, 42, 44, and 938, for reasons therein specified, and of application to remove an executor or administrator in a proper case. *Edwards v. Cobb,*95 N. C., 5.

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. Yacancy 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. 21 Am. Jur., 813, Executors and Administrators, sec. 774; *Griffith v. Frazier,*8 Cranch (U. S.), 5, 3 L. Ed., 471; *Kane v. Paul,*14 Pet. (U. S.), 33, 10 L. Ed., 341; *Hyman v. Gas*
      *547
      *kins,*27 N. C., 267; *Springs v. Irwin,*28 N. C., 27; *In re Bowman,*121 N. C., 373, 28 S. E., 404.

In the *Bowman case, supra,*the holdings o£ this Court is thus epitomized in the headnote: “Where letters of administration are issued to one person, who qualifies, the power of the clerk in that respect and as to that estate are exhausted, and the subsequent appointment of another person as administrator, before the first appointment is revoked, is void.” In the opinion it is said that the clerk “had no power to grant letters upon the estate to any other person under any conditions while the letters issued to Whitaker were unrevoked,” citing *Hyman v. Gaskins, supra.*To like effect is *Springs v. Irwin, supra.*

In this State it is provided by statute, O. S., 31, that “If, after any letters have been issued, it appears to the clerk, or if complaint is made to him on affidavit . . . that any person to whom they were issued . . . has been guilty of default or misconduct in the due execution of his office . . . the clerk shall issue an order requiring such person to show cause why the letters should not be revoked. On the return of such order, duly executed, if the objections are found valid, the letters issued to such person must be revoked and superseded, and his authority shall thereupon cease.”

The practice in such cases is well stated in *Edwards v. Cobb, supra.*There the Court said that in this and similar cases the proceeding is begun by an order made by the clerk to show cause, notice of which must be served on the party charged or proceeded against, who shall have the right to plead thereto, and, from adverse ruling of the clerk, to appeal to the Superior Court, and then to this Court. See, also, *In re Battle,*158 N. C., 388, 74 S. E., 23; *In re Gulley,*186 N. C., 78, 118 S. E., 839.

Ey the weight of authority the removal or discharge of an executor or administrator is not effected by the approval of his final account without a formal order of discharge. Annotations 8 A. L. R., 175, at p. 185. Indeed, in *Best v. Best,*161 N. C., 513, 77 S. E., 762, this Court, speaking through *Hoke, J.,*said that neither the power nor the duties of the administrator there had necessarily ceased because a final settlement had been formally made.

In *Johnston v. Schwenck,*Ohio St., 124 N. E., 61, 8 A. L. R., 170, *Nichols, C. J.,*speaking for the Court, said: “It is the universal holding that the authority of an executor or administrator to represent the estate continues until the estate is fully settled, unless he is removed, dies, or resigns, and that the filing of what purports to be a final account does not extinguish the trust. Indeed, in the case of *Weyer v. Watt,*48 Ohio St., 545, 28 N. E., 670, it was held that an order by the court, directing that the administrator be discharged, made at the time of the filing of a *548final account, does not terminate bis authority if assets of the estate remain unadministered.”

Applying these principles to the factual situation of the case in hand, when the clerk of the Superior Court of Pitt County granted letters testamentary to Herman McLawhorn under the will of Ira J. Erizzelle, deceased, his authority was exhausted, and he had no jurisdiction to issue letters of administration *c. t. a., d. b. n.,*to Jack Edwards or to any other person until a vacancy had occurred by the death or resignation of McLawhorn or until he had been removed for cause by order after notice. Hence, the appointment of Jack Edwards as administrator *c. t. a., d. b. n.,*of Ira J. Erizzelle, deceased, is absolutely void.

We now come to the third question.

Objection to the jurisdiction of a court over the subject matter of an act is fundamental and may be made at any time during the progress of the action. *Henderson County v. Smyth,*216 N. C., 421, 5 S. E. (2d), 136, and cases cited.

In *Burroughs v. McNeill,*22 N. C., 297, it is stated: “The instant that the court perceives that it is exercising, or is about to exercise, a forbidden or ungranted power, it ought to stay its action, and, if it does not, such action is, in law, a nullity.”

To like effect in *Branch v. Houston,*44 N. C., 85, *Pearson, J.,*said: “If there be a defect, *e.g.,*a total want of jurisdiction apparent upon the fact of the proceedings, the court will of its own motion ‘stay, quash, or dismiss’ the suit. This is necessary to prevent the court from being forced into an act of usurpation, and compelled to give a void judgment . . . So, *ex necessitate,*the Court may, on plea, suggestion, motion, or *ex mero motu,*where the defect of jurisdiction is apparent, stop the proceeding. Tidd 516-960.”

It is appropriate to say that whether Herman McLawhorn as executor of Ira J. Erizzelle, deceased, has or has not fulfilled the duties of office is not before us. This is a question to be addressed to the clerk of Superior Court if, and when, application may be made for the removal of said executor. But, until there has been a removal in accordance with law, “the law could not tolerate such a condition of things as would ensue if the clerk could appoint subsequent administrators, leaving the letters of former ones unrevoked.” *In re Bowman, supra.*

For causes stated, the judgment below is

Reversed.