Henderson, Chief-Justice. The affirmations of the-court of probate cannot be controverted, in this case, the court affirms, that John H. Greeen is the executor of Solomon Green, and that Solomon, was the executor of William; but it does not affirm, that John is the executor of William, That is an inference, drawn by the law,, in certain cases; as where- the executor'of the first testator, was sole executor, or surviving executor; but not where the first testator by li is will, declared that the executor of his executor should not execute his will, as I think William did in this case, by appointing.' some other person to execute it, upon the death of Solomon. A testator may a ppoint that his executors shall act jointly, or in succession. If these facts do not appear, they may he introduced by plea, as in the present case, and I adhere to the opinion given in Grimbnrij v, Mhaati % that a copy of the will does not necessarily ac~ company the letters testamentary, and even if they did, la this case, it would only he again putting that on the *436 record which already as fully appears, as if the probate had been set out at large, that William Green directed some other person, except the executor of Solomon to execute his will.
Citator
UpLaw has not yet analyzed Roanoke Navigation Co. v. Green. The absence of a flag is not a finding that it is good law.
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NAVIGATION CO.v. GREEN,14 N.C. 434(1832)
THE ROANOKE NAVIGATION COMPANY v. JOHN H. GREEN, EXECUTOR
OF SOLOMON GREEN.
Supreme Court of North Carolina
1. Where a testator, in the event of the death of his executor, directed the county court to appoint some person to administer his estate, the executor of the first executor is not the executor of the first testator.
2. The case ofGranberry v. Mhoon,12 N.C. 456, affirmed.
THIS was ascire facias, which recited that the plaintiffs had obtained a judgment against Solomon Green, as the executor of William Green; that Solomon Green was dead, having made a will, whereof he appointed the defendant executor, and praying to have execution upon that judgment against the goods of the defendant's testator.
Plea — in substance, that although the defendant's testator was the executor of William Green, that the defendant had never administered any of the chattels of William, neither was the defendant the executor of William, because that William, by his will, directed the Court of Pleas and Quarter Sessions of the county of Warren, where he (435) resided at the time of his death, in case of the death of Solomon, his executor, before he had fully administered, to appoint some suitable person to take charge of and administer the residue left unadministered by his executor. And further, that William, by his will, gave to the person thus to be appointed by the county court the same powers as to such of his estate as should be so unadministered as he had given his executor, the defendant's testator.
Replication — admitting the plea, but averring that the defendant was executor to William, because the county court had never appointed any person to administer the goods of William, unadministered by Solomon.
Demurrer and joinder. His Honor,Daniel, J., on the last spring circuit, at WARREN, overruled the demurrer and gave judgment for the plaintiffs, from which the defendant appealed.
Badger for plaintiff.Gaston and W. H. Haywood for defendant.
HENDERSON, C. J.
The affirmations of the court of probate cannot be controverted. In this case the Court affirms that John H. Green is the executor of Solomon Green, and that Solomon was the executor of William, but it does not affirm that John is the executor of William. That is an inference drawn by the law in certain cases, as where the executor of the first testator was sole executor, or surviving executor, but not wherePage 355the first testator, by his will, declared that the executor of his executor should not execute his will, as I think William did in this case, by appointing some other person to execute it upon the death of Solomon. A testator may appoint that his executors shall act jointly or in succession. If these facts do not appear, they may be introduced by plea, as in the present case, and I adhere to the opinion given inGranbury v.Mhoon, that a copy of the will does not necessarily accompany the letters testamentary, and even if they did, in this case it would only be again putting that on the record which already as fully appears as if the probate had been set out at large that William Green (436) directed some other person except the executor of Solomon to execute his will. I think the demurrer should be sustained and the judgment reversed.
PER CURIAM. Judgment reversed.Cited: London v. R. R.,88 N.C. 588;Pendleton v. Dalton,92 N.C. 191;Starnes v. Thompson,173 N.C. 471.