Brauff's Will, In re
| Decision Date | 06 November 1957 |
| Docket Number | No. 243,243 |
| Citation | 100 S.E.2d 254,247 N.C. 92 |
| Court | North Carolina Supreme Court |
| Parties | In re WILL of H. D. BRAUFF. |
John Webb, Wilson, and R. H. Morrish, Harrisburg, Pa., for movant, appellant.
Battle, Winslow & Merrell, Rocky Mount, for Mrs. Gertrude H. Russell and Robert M. Wiley, Ancillary Administrator c.t.a., appellees.
George B. Patton, Atty. Gen., and Peyton B. Abbott, Asst. Atty. Gen., for Eugene G. Shaw and his successor, as Commissioner of Revenue of North Carolina, appellee.
This is an appeal from an order of Judge Bone affirming an order of the Clerk of the Superior Court of Wilson County in a probate proceeding. On 8 February, 1957, the Clerk entered an order removing Laura E. Brauff as executrix of the estate of Herbert D. Brauff and appointing Robert M. Wiley administrator c. t. a. Thereafter Laura E. Brauff moved the Clerk to vacate the order and revoke the letters testamentary issued to Wiley.
These are the essential background facts: Herbert D. Brauff died on 15 June, 1955, seized of property, tangible and intangible, in Wilson County and elsewhere in North Carolina. He left a will describing himself as a resident of Wilson County, which was probated in Westmoreland County, Pennsylvania. By his will the testator bequeathed to Mrs. Gertrude H. Russell a general legacy of $25,000, and by codicil he bequeathed to her as a specific legacy his stock in the Atlantic Building & Loan Association of Wilson, with face value of $10,000.
Laura E. Brauff qualified in Pennsylvania as executrix under the will of Herbert D. Brauff, but did not probate the will or qualify in North Carolina. After her appointment as executrix in the State of Pennsylvania, she cashed the $10,000 certificate of stock in the Atlantic Building & Loan Association and removed the proceeds from the State of North Carolina.
Mrs. Gertrude H. Russell employed F. E. Winslow of Rocky Mount, North Carolina, to represent her in collecting her legacies. Her attorney, after learning of the sale of the Building & Loan stock and the removal of the proceeds from the State, received information that the executrix was planning to sell the testator's stock in the Wilson Press, Inc., and in the Washington Daily News, Inc., and remove all the testator's property from the State. Counsel for Mrs. Russell also was advised by Pennsylvania counsel for the executrix that she would contest the validity of the bequest in the codicil of the $10,000 stock in the Building & Loan Association. Thereupon counsel for Mrs. Russell moved before the Clerk of the Superior Court of Wilson County that an authenticated copy of the will be probated in Wilson County and that a personal representative c.t.a. be appointed. G.S. §§ 31-22, 31-27. Pending the hearing on the motion, the Clerk, in order to preserve the property pendente lite (G.S. § 28-25), appointed Robert M. Wiley collector of the estate of the testator and fixed his bond at $115,500, the bond premium paid by the collector being $520.
Mrs. Russell's motion came on for hearing, after postponement at the request of Laura E. Brauff, and was heard in the courthouse at Wilson on 27 April, 1956. Mrs. Brauff, executrix, appeared by her attorney. On petition of the Attoeny General, Eugene G. Shaw, Commissioner of Revenue of North Carolina, was permitted to intervene on the side of the applicant. Upon the testimony of Mrs. Elizabeth G. Swindell and other evidence offered at the hearing, it was found as a fact by the Clerk that Herbert D. Brauff died 'seized of property tangible and intangible in Wilson County, North Carolina, and elsewhere in North Carolina, worth in excess of $167,500; that all of said property has been removed from the State of North Carolina except property worth $38,000, and that no property has come into the hands of the Collector, and that this Court has jurisdiction to order the probate of the will of H. D. Brauff in this County, and appoint a personal representative to administer the assets of the estate in this State.' The $38,000 of property remaining in North Carolina consisted of a valid claim against the Wilson Press, Inc., of Wilson, for $31,000, not due until 1961, and $7,500 insurance money held by Jefferson Standard Life Insurance Company, of Greensboro, N. C.
An order was entered, dated 27 April, 1956, admitting a duly authenticated copy of the will to probate and continuing the appointment of Robert M. Wiley as collector until a personal representative could be appointed. To this order Laura E. Brauff, executrix, noted an objection, but no appeal was taken therefrom. A duly authenticated copy of the will, including codicil and probate proceedings as probated in Westmoreland County, Pennsylvania, was recorded in the office of the Clerk of the Superior Court of Wilson County.
Thereafter, and on or about 6 July, 1956, Mrs. Brauff appeared in the courthouse at Wilson and applied for letters testamentary under the will and filed a bond in the sum of $47,500, with corporate surety, and letters testamentary were issued to her. By inadvertence, the Clerk neglected to require, prior to the issuance of the letters, the appointment of a resident process agent for the executrix in Wilson County, as required by G.S. § 28-186.
On or about 18 July, 1956, Robert M. Wiley, collector, filed with the Clerk his final account as required by G.S. § 28-28, showing that he gave notice of his appointment to the three corporations in North Carolina in which the estate owned stock, and had attempted to collect $7,500 from the Jefferson Standard Life Insurance Company, which the insurance company thereafter paid to Laura E. Brauff as North Carolina executrix, under her North Carolina bond; that no funds had come into his hands; that he had made cash expenditures of $564.67; that his services were reasonably worth $100 and that the services of his attorney in the probate proceeding were reasonably worth $250; and requesting that his account be approved and paid by the North Carolina executrix as proper costs of administration. The collector's account was examined and found to be correct by the Clerk, and the allowances requested were approved.
Mrs. Laura E. Brauff, after qualifying as executrix in North Carolina, paid to Mrs. Gertrude H. Russell, through her attorney, both legacies bequeathed in the will, totaling $35,000. However, she has failed to filed inventory or account or any other document in the Superior Court of Wilson County. She has ignored the court and has failed to pay the costs of the proceeding, including items totaling $914.76 shown in the final account of the collector.
After the lapse of several months, the collector upon inquiry of the Clerk discovered that no resident process agent had been appointed. Local counsel for Mrs. Brauff was requested to have one appointed. None was appointed. On suggestion of the collector, the Clerk issued an order directing Mrs. Brauff to show cause on 8 February, 1957, why her letters testamentary should not be revoked and a proper personal representative appointed in her place. At that time there was property of the estate of Herbert D. Brauff in North Carolina, to wit, $31,000 debt of the Wilson Press, Inc., not due until 1961. All other property of the testator had been removed from the State by Mrs. Brauff, executrix. The cause came on for hearing on the order to show cause and was heard before the Clerk on 8 February, 1957. Mrs. Brauff, executrix, appeared by her attorneys. The court found facts substantially as recited above, and entered an order: (1) decreeing that the letters testamentary issued to Laura E. Brauff be revoked and that Robert M. Wiley be appointed ancillary administrator c. t. a., and (2) directing that the allowances due Wiley, collector, and the costs of the proceeding be paid by the...
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