Edwards v. McLawhorn

• Decision Date: 27 November 1940
• Citation: 11 S.E.2d 562,218 N.C. 543
• Parties: EDWARDS v. McLAWHORN.
• Court: North Carolina Supreme Court

11 S.E.2d 562

218 N.C. 543

EDWARDS v. McLAWHORN.

Supreme Court of North Carolina

November 27, 1940

Civil action for recovery for rents and profits allegedly had and received for use and benefit of the estate of Ira J Frizzelle, deceased.

When the action came on for hearing in the trial court and after the reading of the pleadings, "the defendant moved to dismiss the action upon the ground that the appointment of Jack Edwards as administrator, c. t. a. and d. b. n. of Ira J. Frizzelle, deceased, is void, and offered in support of said motion the record".

Pertinent facts appearing of record sufficient for consideration of the question raised are substantially these: Ira J. Frizzelle, of Pitt County, died in 1929, leaving a last will and testament in which he named Herman McLawhorn, who is the defendant herein, R. H. McLawhorn, as executor. The will was duly probated. Herman McLawhorn qualified as executor and letters testamentary were issued to him on March 2, 1929, and he entered upon the duties of executor, and on October 25, 1932 filed in the office of Clerk of Superior Court of Pitt County what is denominated "Final Report", in which the last item appearing is the "Amount in First National Bank of Ayden, 428.38". The report is sworn to and appears of record in the "Book of Settlements" but, in connection therewith, there is no order of the Clerk.

Under the will of Ira J. Frizzelle, his land in Pitt County "known as the Tuten Place" is devised to Herman McLawhorn, in trust for purposes therein set forth.

In July 1938, Nannie I. Frizzelle, who is described as the only next of kin of the said Ira J. Frizzelle and residuary legatee in his will, filed in Superior Court of Pitt County before the Clerk, a petition in which she alleged in brief the foregoing facts, and further:

"5. That as your petitioner is advised and believes, there is still due and owing the estate of the said Ira J. Frizzelle, which should be recovered for the use and benefit of the residuary legatee, a considerable amount of rents and profits accruing from the Tuten farm from 1931 up to and including the year 1937, and which were wrongfully converted by R. H. McLawhorn, the former executor and trustee as aforesaid, during his possession and retention of the farm:

"6. That in order to properly administer said estate, and to collect the aforesaid assets due and owing said estate, it is necessary for an administrator c. t. a. and d. b. n. to be appointed to the end that the estate of the said Ira J. Frizzelle may be properly administered." Further, the petitioner "recommends that Jack Edwards be appointed administrator c. t. a. and d. b. n. with all the power and authority vested by law in such administrator in such case". Thereafter, on October 4, 1938, upon application of Jack Edwards, the Clerk of Superior Court of Pitt County "ordered and adjudged that Jack Edwards c. t. a. be appointed administrator of the estate of Ira J. Frizzelle, deceased, upon entering into bond in the sum of $1,000.00 ***." Upon Jack Edwards taking the oath of administrator the Clerk issued to him letters of administration, "c. t. a., d. b. n. of the estate of said deceased".

Thereupon, on October 4, 1938, Jack Edwards, as administrator c. t. a. and d. b. n. of Ira J. Frizzelle, deceased, instituted this action against Herman McLawhorn, as R. H. McLawhorn, for the purposes set forth in the petition of Nannie I. Frizzelle as above stated. In the complaint filed he alleges, among other things: "1. That the plaintiff *** is the duly qualified and acting administrator c. t. a. and d. b. n. of the late Ira J. Frizzelle, who died domiciled in Pitt County on the -- day of --, 1929." The defendant, in answer thereto, avers: "That paragraph 1 of the complaint is denied, except insofar as it conforms to the record."

The court below denied the motion, and defendant excepted. Then, after disposing of other questions, and during the progress of the trial, the court being of opinion that the action involves a detailed accounting and is a case for reference, "ordered, adjudged and decreed: 1st. That the defendant's motion to dismiss the action on the ground that the appointment and qualification of the plaintiff as administrator is void, be and the same is hereby denied"; and after ruling upon other matters, ordered a reference.

Defendant appeals therefrom to the Supreme Court and assigns error.

J. B. James, of Greenville, and J. A. Jones, of Kinston, for defendant-appellant.

Albion Dunn, of Greenville, for plaintiff-appellee.

WINBORNE Justice.

These questions are determinative of this appeal: 1. Has the Clerk of the Superior Court jurisdiction to appoint an administrator c. t. a., d. b. n. of an estate, before the executor, who has qualified upon the same estate and entered upon the duties of his office, shall have been removed by order of the Clerk, or before letters testamentary issued to him shall have been revoked by order of the Clerk? 2. If not, does the filing by the executor of a final report of the administration of the estate have the effect of removing him from office, if in fact the estate has not been fully settled? 3. If not, when, in the trial of an action instituted by a party, as administrator c. t. a., d. b. n., who has been appointed as such before there is an order removing the executor, it is made to so appear to the Court, should the Court ex mero motu, or upon motion of the defendant, dismiss the action without proceeding further with the trial? The first and second questions are properly answered in the negative, and the third in the affirmative.

In this State it is provided by statute that the Clerk of the Superior Courts of each county has jurisdiction within his county to take proofs of wills and to grant letters testamentary, letters of administration with will annexed and letters of administration in cases of intestacy, C.S. §§ 1 and 938; to revoke letters testamentary and of administration, C.S. §§ 30, 31, 32, 42, 44 and 938, for reasons therein specified, and of application to remove an executor or administrator in a proper case. Edwards v. Cobb, 95 N.C. 4, 5.

The general rule is that, after an executor or administrator is appointed and qualified as such, his authority to represent the estate continues until the estate is fully settled, unless terminated by his death, or resignation, or by his removal in some mode prescribed by statute, or unless the letters be revoked in a manner provided by law.

It is also an established principle of law that to warrant the appointment of an...