Covington's Will, In re, 457

• Decision Date: 18 May 1960
• Docket Number: No. 457,457
• Citation: 252 N.C. 551,114 S.E.2d 261
• Parties: In the Matter of the WILL of Leake S. COVINGTON, Deceased.
• Court: North Carolina Supreme Court

Page 261

114 S.E.2d 261

252 N.C. 551

In the Matter of the WILL of Leake S. COVINGTON, Deceased.

No. 457

Supreme Court of North Carolina.

May 18, 1960

Webb & Lee, Bynum & Bynum, Rockingham, Robinson, Jones & Hewson, Charlotte, for appellant.

Leath & Blount, Rockingham, and Blakeney, Alexander & Machen, Charlotte, for appellees.

RODMAN, Justice.

Before one can qualify as an executor he must take an oath (G.S. § 28-40) stating his belief that the writing he is to execute is the last will and testament of deceased and that he will well and faithfully execute the office agreeable to the trust and confidence imposed in him. G.S. § 11-11.

Mindful of his oath, what is the duty of an executor who, during the course of his administration, discovers a writing which convinces him that the instrument under which he acts is not in fact the last will and testament of deceased? The answer is, we think, obvious. It is the duty of the executor to communicate the facts to the court which appointed him, and if the reason for his changed belief is a writing of later date than the one under which he acts, and purports to to be a will, that writing should be delivered to the clerk, who is invested with probate jurisdiction. Brogden, J., said in Wells v. Odum, 207 N.C. 226, 176 S.E. 563, 564: 'It is a crime in this state to fraudulently suppress or conceal a will. C.S., § 4256. Obviously, the basis for making such suppression a crime is the fact that it is the policy of the law that wills should be probated, and that the rights of the parties in cases of dispute should be openly arrived at, according to the orderly processes of law. Moreover, C.S.Supp.1924, § 4139 and C.S., § 4141, by implication, at least, require the probate of a will. Furthermore, C.S., § 4140, provides that if the executor fail to prove the will according to law, any devisee or legatee named in the will 'or any other person interested in the estate, may make such application, upon ten days notice thereof to the executor."

Covington acted properly when he delivered the writing purporting to be a will, dated 8 September 1953, to the clerk. This writing not only designated him as executor, but it named him as the sole beneficiary. He had a duty as the named executor to offer it for probate, G.S. § 31-12, Wells v. Odum, supra, and a right as the beneficiary to insist that it be probated, G.S. § 31-13. The clerk, in his order revoking the letters issued to Covington, recognized that right to offer the writing for probate

An executor acts in a fiduciary ca pacity. McMichael v. Proctor, 243 N.C. 479, 91 S.E.2d 231. He is classified by statute with ' guardians, trustees, and other fiduciaries.' G.S. § 36-9. Both by law and the words of his oath he must faithfully execute the trust imposed in him. He must be impartial. He cannot use his office for his personal benefit. When conditions arise which will prevent him from faithfully and impartially executing the duties which he has assumed, he should not be expected or permitted to continue to serve.

Where a conflict exists between the obligations which one has assumed as executor and his individual rights, he may tender his resignation to the court. G.S. § 36-10. If and when the resignation is tendered, the court should proceed as provided in G.S. § 36-11, but the fact that a fiduciary appointed by a court does not tender his resignation does not deprive the court which appoints him of authority to act and to revoke the letters testamentary when cause for removal exists. Taylor v. Biddle, 71 N.C. 1; Edwards v. Cobb, 95 N.C. 4; Tulburt v. Hollar, 102 N.C. 406, 9 S.E. 430; In re Battle's Estate, 158 N.C. 388, 74 S.E. 23; In re Johnson's Will, 182 N.C. 522, 109 S.E. 373; In re Meadows' Will, 185 N.C. 99, 116 S.E. 257; In re Estate of Suskin, 214 N.C. 219, 198 S.E. 661; In re Estate of Johnson, 232 N.C. 59, 59 S.E.2d 223.

Our statute, G.S. § 28-32, recognizing the power of the court and prescribing the procedure by which it may be exercised, provides: 'If, after any letters have been issued, it appears to the clerk * * * that any person to whom they were issued is legally incompetent to have such letters, or that such person has been guilty of default or misconduct in due execution of his office * * * the clerk shall issue an order requiring such person to show cause why the letters should not be revoked. On the return of such order, duly executed * * if the objections are found valid, the letters issued to such person must be revoked and superseded, and his authority shall thereupon cease.'

We have not heretofore been called upon to define the words 'legally incompetent' and the other words authorizing removal as used in the statute. Of course any of the disqualifications enumerated in G.S. § 28-8 would justify removal, In re Sams' Estate, 236 N.C. 228, 72 S.E.2d 421; but we think the language used is entitled to a broader meaning and should be interpreted as meaning not fit, qualified, or prepared to impartially discharge the duties of the office in the manner directed by the oath taken.

The Supreme Court of Nebraska was called upon to define the words 'legally competent,' used in its statute with respect to qualification of executors. It said: 'The lawmakers did not define the term 'legally competent,' but left the interpretation thereof to the courts. In a judicial proceeding an executor of a probated will is not only an officer of the court but is a trustee for the persons entitled to share decedent's estate. The legislature recognized the relation of trustee and beneficiary by providing that letters testamentary shall be issued to the person named executor in the will, 'if he is legally competent, and he shall accept the trust and give bond as required by law.' In the sense used by...