The appointment of an administrator or an executor is a judicial act and must be performed by the court itself. It is never proper for the clerk of the court to make the appointment, inasmuch as the court must determine a judicial question, which is, the death of the decedent.36

If the court making the appointment has jurisdiction in any manner, the appointment cannot be questioned in collateral proceedings. Should such a court appoint a person who is not entitled to administer, the letters are voidable but are not void; nor would the act of such administrator be rendered void so long as the court has jurisdiction of the subject matter and the parties.37 The rule is different however, if the appointment is void. In such case no right whatever can be acquired through such void administration.38

35 Baldwin vs. Mitchell, 86 Md., 379; Robarts vs. Lamb, 89 Mo., 303.

36 Rohiadas vs. E. R. Savings Inst., 76 N. Y., 316; Picard's Succession, 33 La. Ann., 1135.

37 Flinn vs. Chase, 4 Denio, 85;

Strauss vs. Phillips, 189 Ill., 9. 38 Griffith vs. Frazier, 8 Cranch, 9;

Holyoke vs. Haskins, 5 Pick, 20.