Edwards v. Cobb

• Decision Date: 31 October 1886
• Citation: 95 N.C. 4
• Court: North Carolina Supreme Court
• Parties: W. H. EDWARDS et al. v. JAMES H. COBB, Ex'r.

95 N.C. 4

W. H. EDWARDS et al.

v.JAMES H. COBB, Ex'r.

Supreme Court of North Carolina.

October Term, 1886.

OPINION TEXT STARTS HERE

This was an APPLICATION for the removal of an executor, begun before the Clerk of GREENE Superior Court and heard by Connor, Judge, upon appeal, at Chambers, on 16th May, 1886.

Devereux Cobb died in July, 1883, in the county of Greene, leaving a last will and testament, which was duly proven, and James H. Cobb, the defendant, qualified as executor thereof, and thereupon took possession of considerable estate.

The feme plaintiff is a legatee named in the will, and the plaintiff Baker is a creditor of the estate.

At the instance of the plaintiffs, on the 22d of February, 1886, the Clerk of the Superior Court of the county named, issued a notice to the defendant to appear before him within ten days next after the service of the notice, and show cause why he should not be required to give bond as such executor, and on failure to do so, why he should not be removed from his office as such executor.

At the time of the issuing of the notice, the plaintiffs filed with the Clerk a verified complaint alleging the insolvency of the defendant, his extravagance and negligent management of the estate in his hands, as well as his own business affairs--that he received as executor personal property of the value of $5,000--that the greater part thereof he had converted to his own use, and had failed to pay most of the debts--that he had paid a debt of the seventh class, to the prejudice of creditors of the same and other prior classes--that he had paid a legatee $100 and thereby committed a devastavit--that he had received rents of the lands of the testator amounting to $3,000--that he had wasted and misapplied the assets--that he had failed and neglected to make and file accounts of receipts and disbursements of the assets, and of his disposition of the property, and that he had not filed any complete and true inventory of the property and effects received by him as executor, &c.

The defendant appeared before the Clerk and filed his verified answer to the complaint, in which he admitted that he had paid a creditor of the seventh class and had paid one of the legatees $100, but he denied all the other material allegations, and alleged that he had filed a proper inventory, had rendered to the Clerk proper accounts of his disposition of all the personal property, that he had fully administered the assets that had come and ought to have come into his hands, and that there yet remained debts unpaid, &c., &c.

Thereupon the defendant moved before the Clerk that the material issues of fact raised by the complaint and answer so filed, be transferred for trial at the next term thereafter of the Superior Court. The Clerk denied this motion, and without hearing any evidence, except the complaint and answer, so far as appears, found the issues in favor of the plaintiffs, and made an order requiring the defendant to file a bond as executor within twenty days, and on failure to do so, that he be removed from his office.

From this judgment, the defendant appealed to the Judge at Chambers, who, without deciding any question of law, and without instructions, remanded the matter to the Clerk. Thereupon, the Clerk, on motion of the plaintiffs, made the following order, on the 15th of April, 1886:

“This cause having been remanded, and it appearing to the satisfaction of the Court that James H. Cobb, executor, is insolvent and incompetent, and has made no proper returns of the expenditures and assets of the estate of Devereux Cobb, it is adjudged that he be required to give a bond with security in the sum of $3,000, conditioned for the proper administration of the estate of his testator, within ten days after service of this judgment on him.”

This order was served on defendant and he appeared within the ten days mentioned, and gave notice of appeal from said judgment. On April 26th, the defendant not having appeared as required by said order, the Clerk made the following order, on motion of plaintiffs' attorney, to-wit:

“Whereas, an order was heretofore issued, requiring Cobb, as executor to give bond (as stated above); And whereas, said order has been served on him, and ten days have elapsed since said service; and whereas, Cobb has failed to file said bond as required: It is adjudged that his letters testamentary, as executor of Devereux Cobb, be revoked, and on motion of plaintiffs' attorney, W. H. Edwards is hereby appointed administrator with the will annexed of Devereux Cobb, upon his giving the necessary bond, and that letters of administration issue.”

From this order the defendant appealed to the Judge at Chambers, who affirmed the judgment of the Clerk. The defendant excepted, and appealed to this Court.

Mr. Theodore Edwards, for the plaintiffs .

Messrs. Geo. V. Strong, T. C. Wooten and Jno. Devereux, Jr., for the defendant .

MERRIMON, J. (after stating the facts as above).

In this, and like cases, the Clerk of the Superior Court does not act in the place of, and for that Court, but he exercises jurisdictional functions conferred upon him as Clerk, separate and distinct from his duties as Clerk to the Court. Although the office of Probate Judge is abolished, nevertheless jurisdiction over matters of probate, and some other matters--particularly specified--is conferred upon the Clerk. The scope of his office is enlarged, so as to embrace this authority, distinct from his other ordinary duties, and he exercises judicial authority in the way prescribed, as certainly as if he were denominated Judge of Probate, and were not such Clerk. It seems that the Legislature deemed it wise, on the score of economy and convenience, to place the jurisdiction in respect to matters of probate, in close connection with the Superior Courts, so that issues of fact arising before the Clerk, might be tried by a jury under the supervision of these Courts, and errors of law, and errors in other respects, of the Clerk, might be promptly corrected by them. In case issues of fact, to be tried by a jury, shall be raised, these must be transferred to the Superior Court for trial at the next succeeding term thereof, and if issues of law shall be raised, the complaining party may appeal to the Judge having jurisdiction, either in vacation or in term.

It will be observed that the jurisdiction of the Clerk is distinct from that of the Superior Court, and therefore, it is proper for the latter to remand the issues when tried, for other proper proceeding or matters in a...