Edwards' Estate, In re
| Decision Date | 26 September 1951 |
| Docket Number | No. 89,89 |
| Citation | 234 N.C. 202,66 S.E.2d 675 |
| Parties | In re EDWARDS' ESTATE. |
| Court | North Carolina Supreme Court |
P. H. Bell, Charlotte, for petitioner, appellant.
No counsel contra.
The appeal presents this solitary question: Did the judge err in affirming the order of the clerk refusing to grant administration to the petitioner?
The right to administer on the estate of an intestate is entirely statutory. Generally speaking, the right is given to the surviving spouse, the next of kin, the creditors, and other persons legally competent, in the order named. G.S. § 28-6. As here used, the term 'next of kin' means those persons who take the surplus of the personal estate of an intestate under the statute of distribution. Henry v. Henry, 31 N.C. 278; Weaver v. Lamb, 140 Iowa 615, 119 N.W. 69, 22 L.R.A.,N.S., 1161, 17 Ann. Cas. 947.
Since the decedent left no widow, the petitioner, as his only child, takes the entire surplus of his personal estate under subdivision four of the statute of distribution, G.S. § 28-149. In consequence, the petitioner is the sole next of kin, and as such is the party primarily entitled to administration. Moreover, he has made timely application to the proper Clerk, i. e., the Clerk of the Superior Court of Edgecombe County, for appointment as administrator. G.S. § 28-15. These things being true, the petitioner has an absolute legal right to receive letters of administration, unless he is disqualified. Williams v. Neville, 108 N.C. 559, 13 S.E. 240; In re Bailey's Will, 141 N.C. 193, 53 S.E. 844.
The order of the clerk holds that the petitioner is not entitled to administration on the estate of his deceased father, and assigns as the reason for such holding that the petitioner is under the disqualification defined by this statutory provision: G.S. § 28-8.
The record on this appeal discloses that the supposed factual foundation underlying the order, i. e., that the petitioner is incompetent to discharge the duties of an administrator by reason of want of understanding, is not supported by evidence received by the clerk in open court. Indeed, the record shows that the conclusion of the clerk as to the alleged incompetency of the petitioner rests upon undisclosed and unrecorded information obtained by the clerk from third persons outside of court in the absence of the petitioner and...
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In re C.G.
...claim set up against him, and ... meet it on the law and the facts and show if he can that it is unfounded." In re Edwards’ Estate , 234 N.C. 202, 204, 66 S.E.2d 675, 677 (1951) (citations omitted); see also Rhyne v. K-Mart Corp. , 358 N.C. 160, 180, 594 S.E.2d 1, 15 (2004) ("The term ‘law ......
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Lowther's Estate, In re, 27
...v. Cobb, 95 N.C. 4. See also: McIntosh, N.C.P. & P., Sections 65, 72, 696 and 701; Rowland v. Thompson, 64 N.C. 714; In re Estate of Edwards, 234 N.C. 202, 66 S.E.2d 675; Mills v. McDaniel, 161 N.C. 112, 76 S.E. 551.' Id. at 230, 72 S.E.2d at These cases do not sustain the conclusion that, ......
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...supplied.) To like effect see In re Gupton, 238 N.C. 303, 77 S.E.2d 716; State v. Gordon, 225 N.C. 241, 34 S.E.2d 414; In re Estate of Edwards, 234 N.C. 202, 66 S.E.2d 675; Townsend v. Carolina Coach Co., 231 N.C. 81, 56 S.E.2d 39, 20 A.L.R.2d 1174; State v. Armstrong, 232 N.C. 727, 62 S.E.......
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...v. Cobb, 95 N.C. 4. See also: McIntosh, N. C. P. & P., Sections 65, 72, 696 and 701; Rowland v. Thompson, 64 N.C. 714; In re Estate of Edwards, 234 N.C. 202, 66 S.E.2d 675; Mills v. McDaniel, 161 N.C. 112, 76 S.E. 551. However, there was no objection or exception to the de novo hearing in t......