Wooten v. . Wooten , 123 N.C. 219 ( 1898 )

The Code, sec. 1479, provides: "If the husband shall die after his wife, but before administering, his executor or administrator or assignee shall receive the personal property of the said wife, as part of the estate of the husband, subject as aforesaid," i. e., to her debts. This changed rule of the common law, which was that the personalty of the wife did not go to the husband when he died without having reduced it to possession by administration. And further, in conformity to this charge, it devolves the right of administering upon the wife's estate upon the executor or administrator of the husband ex officio. The object was evidently to save the cost and expense of two administrations and two sets of commissions by making the cestui que trust (the husband's representative) ex officio the representative of the wife. If there was an executor or administrator of the husband, an appointment of an administrator of a wife, who had predeceased him, would (221) be a nullity because not authorized by law. If there is a creditor of the wife, when there is default in taking out letters of administration upon the husband's estate, his remedy is not (as here attempted) by taking out administration upon the wife's estate, but to apply for administration upon the husband's estate, and then, as the law provides, he "shall receive the wife's personalty" and apply it to her debts.

As in this case it seems there was no creditor of the wife (who died, indeed, eight years before her husband) the proceeding was probably taken by some creditor of the insolvent husband with the view of applying to his debts the property of the wife, which, having become his, was liable to such application. But, in any event, whether the plaintiff was creditor of the wife or of the husband, his remedy under this statute was to take out administration upon the husband's estate.

The court below properly held that there is no authority to appoint an administrator upon the estate of a wife who dies before her husband, and, such appointment being void, dismissed the action.

Affirmed.