(N. C., 109 S. E. 70.) Will-right of public administrator to file caveat. Under a statute designating those entitled to file a caveat to a will as those entitled under the will, or interested in the estate, a public administrator has not such interest as to be entitled to file such caveat until he has been appointed and is qualified to administer upon the particular estate in question. [See note on this question beginning on page 79.] APPEAL by the public administrator from a judgment of the Superior Court for Forsyth County (Long, J.) dismissing a caveat filed to contest the validity of the will of John Neal, deceased, and to contest the claims of relationship of the wife and mother of deceased. Affirmed. Statement by Clark, Ch. J.: John Neal, born in Winston, North Carolina, a nullius filius, died in Omaha, Nebraska, leaving an estate estimated to be of the value of $800,000 or over. On October 19, 1920, what was claimed to be a copy of a lost or destroyed will, disposing of his property and appointing the Wachovia Bank & Trust Company executor and trustee, was admitted to probate in the superior court of Forsyth. The caveat was duly filed to said will by Jenny Beckerdite, of Washington, District of Columbia, claiming to be the mother of said John Neal, and by one Mary Harbin McCoy and her son, Tharry McCoy, of Okmulgee, Oklahoma, claiming to be the wife and son of said John Neal, and in addition, on April 19, 1921, the appellant, Charles E. Hamilton, public administrator of Forsyth, filed his petition for caveat, upon the ground that he was entitled to qualify and that his interest in the commissions which would accrue was such "interest in the estate" as would entitle him to maintain a caveat to contest the validity of the copy of the alleged will, and also to contest the claim of Jenny Beckerdite to be the mother of the deceased and of Mary Harbin McCoy and her son to be the wife and son of the deceased. The court dismissed the petition of said Charles E. Hamilton, public administrator, and he appealed. Messrs. Lindsay Patterson and H. G. Hudson, for appellant: The right to administer an estate is a sufficient interest to entitle the person in whom it is vested to contest the probate of a will. Re Davis, 182 N. Y. 468, 75 N. E. 530; Gombault v. Public Administrator, 4 Bradf. 226; Re Thompson, 178 N. C. 542, 101 S. E. 107; Brooks v. Paine, 123 Ky. 271, 90 S. W. 600; Bloor v. Platt, 78 Ohio St. 46, 84 N. E. 604, 14 Ann. Cas. 332; Reynolds v. Lloyd Cotton Mills, 177 N. C. 412, 5 A.L.R. 284, 99 S. E. 240; Re Healy, 122 Cal. 162, 54 Pac. 736. The public administrator also represents other interests, and as such representative he is entitled to a hear ing as to the validity of the alleged I will of John Neal. Re Davis, 182 N. Y. 468, 75 N. E. 530; Schouler, Exrs. & Admrs. 5th ed. § 1116. Messrs. Manly, Hendren, & Womble, L. M. Swink, B. S. Royster, M. L. Learned, and Craige & Vogler, for appellees: As a general rule, the public administrator, as such, has no right to file a caveat, as a caveat can only be filed by one "entitled under the will, or interested in the estate." Randolph v. Hughes, 89 N. C. 431; Re Sanborn, 98 Cal. 103, 32 Pac. 865; Re Hickman, 101 Cal. 609, 36 Pac. 118; State ex rel. Eakins v. District Ct. 34 Mont. 226, 85 Pac. 1022; 28 R. C. L. p. 390; Braeuel v. Reuther, L.R.A.1918A, 469, note, Ann. Cas. 1918B, 538, note. Neither has a public administrator such interest as will entitle him to maintain an action to contest. Thomp. Wills, p. 454, § 518; 3 Alexander, Wills, p. 2038, § 1326; Re Davis, 45 Misc. 306, 92 N. Y. Supp. 392. Clark, Ch, J., delivered the opinion of the court: The petition was properly dismissed. A party entitled to file a caveat under Consol. Stat. § 4158, must be someone "entitled under such will, or interested in the estate." It being admitted that the deceased was nullius filius, there could be no one coming within that Will-right of trator to fille caveat. designation except public adminis- (1) his mother, if living; (2) his wife and child, if proven to be such; and (3) the University of North Carolina, should it be found that the deceased left neither mother nor wife nor children. A public administrator is a position created by chapter 113, Laws 1868-69, now Consol. Stat. § 17. He has no interest in or control over any estate until appointed thereto by the clerk and qualified. Consol. Stat. § 20. It is not necessary to discuss whether his prospective commissions are such an interest as would entitle him to caveat the will, for he has not been appointed administrator of this estate, and has no interest whatever therein. lic administrator can apply for letters of administration "when the period of six months has elapsed from the death of any decedent, and no letters testamentary, or letters of administration or collection, have been applied for and issued to any person," and even then such public administrator is not entitled in all cases to be appointed. See citations under that section. In this case the Wachovia Bank & Trust Company has already been appointed, and there is no ground upon which the public administrator can be entitled to qualify unless such administration is set aside upon a caveat of the will or by order of the clerk for other sufficient cause. In the trial of the caveat now pending, it must be determined whether the mother is living, or whether the deceased left a wife and child, as alleged, and in the trial of such caveat the University of North Carolina is a proper party, as, in view of the claims of the first two parties being negatived, the University would be entitled to the property, if the will is set aside, by the terms of the charter of that institution in 1789 (chapter 305), which conferred upon it all property escheating for lack of heirs and distributees, or otherwise. If the contest should be decided in favor of either of these three parties and the alleged will should be set aside, the administration would be conferred upon the successful contestant, or someone selected at the request of such party. In no event has the public administrator any right to be appointed to administer until the successful party has waived its right to do so, Consol. Stat. §§ 29 and 30. The position of public administrator confers no right to administration until the parties having the prior right to qualify have waived their right or been adjudged unfit by the clerk. He has no interest in the estate and no right to qualify unless and until appointed to the particular estate by the clerk. Until so ap Under Consol. Stat. § 20, the pub- pointed he is simply an "eligible" for (— N. C. —, 109 S. E. 70.) appointment upon the default of the parties who have a prior right to appointment. 24 C. J. p. 1201, § 2873, note (a). The right of succeeding by escheat to all property, when there are no wife or parties entitled under the Statutes of Descent and Distribution, was conferred upon the University by its charter in 1789 (chap. 306, § 2), and has been confirmed since by the state Constitution (art. 9, § 7), and has been extended by several statutes, which are now Consol. Stat. §§ 5784-5786. This is a most valuable right, which will become more and more a source of revenue to the University as the state grows in wealth and population. One of the first cases in which the matter was presented is University of North Carolina v. Johnston, 2 N. C. 373, and among those since have been two recent cases, one from Wilmington and the other from Goldsboro (Grantham v. Jinnette, 177 N. C. 229, 98 S. E. 724), out of which the University became entitled, under decisions of this court, to receive very considerable sums. The University, therefore, is the proper, if not necessary, party to represent the public interest, if there is a default of heirs and distributees; but the public administrator is not when he has not been appointed and qualified upon the estate in question. Consol. Stat. § 6. This contest turns upon the validity of the alleged will, a copy of which has been probated in common form in lieu of the alleged original will. The parties who are entitled to urge the caveat to set aside this probate are, as already stated, the alleged mother, the alleged wife and son, and the University of North Carolina. The judgment dismissing the petition of the public administrator is affirmed. Stacy, J., concurs in result. ANNOTATION. Right of public administrator or state to file caveat to or contest will. I. General statement, 79. II. Public administrator, 79. III. State, 81. I. General statement. Since proceedings to contest a will are statutory, and the statutes of most of the states authorize contests by "persons interested," or use similar terms, the question whether the state or a public administrator may contest or oppose the probate of a will is one of statutory construction, and depends largely upon the inquiry as to who may be regarded as an interested person. The authorities are not agreed either as to the right of the state or a public administrator to contest a will. II. Public administrator. There are several decisions to the effect that a public administrator is not a "person interested," entitled to contest a will. Re Sanborn (1893) 98 Cal. 103, 32 Pac. 865; Re Hickman (1894) 101 Cal. 609, 36 Pac. 118; Re Healy (1898) 122 Cal. 162, 54 Pac. 736 (obiter); State ex rel. Eakins v. District Ct. (1906) 34 Mont. 226, 85 Pac. 1022; RE NEAL (reported herewith) ante, 77. In Re Sanborn (Cal.) supra, it was held that a public administrator cannot contest the probate of a will under a statute permitting contests by "persons interested." The court said: "The probate of a will can be contested only upon 'written grounds of opposition' filed by a 'person interested,' that is, interested in the estate, and not in the mere fees of an administration thereof. A public administrator has no interest in an estate, or in the probate of a will. That is a matter which concerns only those to whom the estate would otherwise go. . If a public administrator could legally as sume the character of a standing contestant of wills, notwithstanding the wishes of heirs and devisees, he would certainly enlarge the sphere of his activities; but the limitations of the statute do not allow such inflation." And, citing the Sanborn Case, the court in State ex rel. Eakins v. District Ct. (1906) 34 Mont. 226, 85 Pac. 1022, held that the public administrator was not an interested person, entitled to object to the probate of a will. It was held in the reported case (RE NEAL, ante, 77) that under a statute by which a party entitled to file a caveat must be someone "entitled under such will, or interested in the estate," a public administrator was not entitled to maintain a caveat to contest the validity of a will unless and until appointed administrator of the particular estate. But in several New York cases the holding, or assumption at least, is to the effect that a public administrator may appear in opposition to the will. Thus, under the New York statute authorizing any person interested in sustaining or defeating a will to appear, and at his election support or oppose the application for probate, it was held in Re Davis (1905) 182 N. Y. 468, 75 N. E. 530, affirming (1905) 105 App. Div. 221, 93 N. Y. Supp. 1004, that a public administrator appointed in another state as administrator of the property of the decedent in that state, under a claim that the decedent died intestate, should be allowed to intervene in a proceeding for the probate of an alleged will of the decedent, pending in New York, the domicil of the decedent, and to oppose such probate. The court said: "As was said by the learned surrogate in his opinion, 'the right to administer the estate is a sufficient interest, in this state, to entitle the person in whom it is vested to contest the probate of the will.' The administrator in California was authorized by a decree of the proper court in that state to take possession of the assets of the deceased in his county, to convert them into money, and to distribute the proceeds according to law. That decree was granted before any application had been made to prove the will. The assets were of great value, and the administrator had a personal interest to the extent of his fees for services already rendered, and a much more important interest as the representative of others; for, if there was no will, he had exclusive jurisdiction and control of all the personal property of the decedent in the county of Fresno, California, for the purpose of administration. He represented the beneficiaries, who were the substantial owners of the property. Probate of a will, however, would deprive him of power to administer, and leave the validity of all his acts before he heard that there was a will open to question. He had an interest to protect and the right to become a party to the proceeding, so as to see that no paper purporting to be a will of the decedent was admitted to probate unless it was genuine and executed by a competent person according to law." See also opinion of the surrogate court, on objections to the application of the administrator for leave to appear and oppose the probate, reported in (1904)' 45 Misc. 306, 92 N. Y. Supp. 392, in which the same conclusion was reached and in which the court distinguished the case from Re Hickman (1894) 101 Cal. 609, 36 Pac. 118, supra, on the ground that in the latter case the interest of the public administrator was simply his right to letters of administration, whereas in the case before it letters of administration had been issued to the public administrator, and he appeared not as one seeking to enforce his right to administer, but as one to whom letters of administration had in fact been issued, and for the purpose of vindicating his rights and authority over the estate. It was apparently assumed in Gombault v. Public Administrator (1857) 4 Bradf. (N. Y.) 226, that a public administrator representing the city, of New York was entitled to oppose, on the ground of testamentary incapacity and undue influence, the probate of a will of one who died in that city, where it did not appear that the decedent left any known heirs or next of kin. And it appears to be assumed in Public Administrator v. Watts (1829) 1 Paige (N. Y.) 347, reversed on other grounds in (1829) 4 Wend. 168, that a public administrator may appeal from a decree allowing probate of a will. III. State. A question related to that already considered, is whether or not the state has a right to contest or oppose the probate of a will. This question is interesting from a practical point of view, because the question may arise as to who may represent the public in preventing a probate, or in setting aside the probate, of a forged' or fraudulent or improperly executed will, in case the property, in the absence of a will, would escheat to the state. If the public administrator cannot oppose the will, may the state do so on the ground that it is an interested party? Or may both the public administrator and the state oppose the will? The authorities are not in harmony on the question of the right of the state to oppose or to set aside probate. In several cases it has been held that the state has a right to contest the validity of a will. State ex rel. Donovan v. Second Judicial Dist. Ct. (1901) 25 Mont. 355, 65 Pac. 120; State v. Nieuwenhuis (1920) 43 S. D. 198, 178 N. W. 976; State v. Lancaster (1907) 119 Tenn. 638, 14 L.R.A. (N.S.) 991, 105 S. W. 858, 14 Ann. Cas. 953; Davis v. Davis (1824) 2 Addams, Eccl. Rep. 223, 162 Eng. Reprint, 275. See also Gombault v. Public Administrator (1857) 4 Bradf. (N.. Y.) 226. In State v. Nieuwenhuis (1920) 43 S. D. 198, 178 N. W. 976, supra, it was held that the state is a party in interest within the meaning of a statute providing that, where a will has been admitted to probate, any person interested therein may, at any time within a year, after such probate, contest the same or the validity of the will. It was contended in this case that the remedy of the state was not in the 18 A.L.R.-6. county court, which had exclusive jurisdiction of probate proceedings, but in the circuit court in an action to declare an escheat, and that the admission of a will to probate in no way affected the rights of the state. But the court took the view that in any action instituted by the state in the circuit court to declare an escheat of the property, the devisees under the will might offer in evidence the decree of the county court admitting the will to probate, which decree would be conclusive on the state; and that the state, therefore, was an interested party, entitled to contest the will in the county court. So, under a statute providing that any person interested may appear and contest a will, it was held in State ex rel. Donovan v. Second Judicial Dist. Ct. (Mont.) supra, that the state had such interest, under the statutory right to the estate by escheat in case there were no heirs, as would entitle it to contest the probate of a will, on allegations that the will was a forgery and that the testator had no heirs in the state or elsewhere, to the knowledge of the contestant, even though the statutory time for an escheat proceeding had not arrived and the state's interest might subsequently cease on the appearance of heirs. The court regarded the interest of the state, contingent on the nonappearance of heirs, as sufficient to entitle it to contest the will. Another statute provided that if no person, within a year after probate, instituted a contest, the probate was conclusive; while an escheat proceeding could not be begun within five years after the death of the decedent. And the court said it was apparent, therefore, that if the state could not contest the will before its probate or within a year thereafter, its rights were lost. And it was held in State v. Lancaster (1907) 119 Tenn. 638, 14 L.R.A. (N.S.) 991, 105 S. W. 858, 14 Ann. Cas. 953, supra, that statutory authority is not necessary to enable the state to contest a will, in the absence of which the testator's property would escheat; and it may therefore institute such contest in the probate court, |