In re Battle's Estate
| Decision Date | 13 March 1912 |
| Parties | In re BATTLE'S ESTATE. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Nash County; Ferguson, Judge.
In the matter of the administration of the estate of Frank P Battle, deceased. Application for removal of W. R. Mann administrator. On appeal from an order of the clerk of the superior court of Nash county. Order of removal was affirmed and the administrator excepted and appeals. Affirmed.
On application to the clerk of a superior court to remove an executor or administrator, an appeal lies, under Code, § 116 to the judge of the superior court, and from his decision, on errors of law, to the Supreme Court.
On appeal to the judge of the superior court in a proceeding to remove an executor or administrator, the judge, in his discretion, may direct issues of fact to be tried to a jury.
T. T. Thorne, for appellant.
Brooks & Taylor, for appellees.
It appears of record that Frank Battle died, domiciled in Nash county, on 29th of September, 1911, and within two or three weeks thereafter W. R. Mann was duly qualified as his administrator; that the proceedings were had before T. A. Sills, Esq., clerk of the superior court of Nash county, and on presentation of a paper writing, purporting to be a renunciation of Cora Battle, widow of deceased, in favor of W. R. Mann. This paper, bearing date October 13, 1911, appeared to be signed by Cora Battle having made her mark thereto, and same was witnessed by one R. L. Powell. Thereafter, to wit, on November 20, 1911, on petition filed and notice duly given, affidavits were submitted on part of Cora Battle tending to show that she had not signed the renunciation, nor authorized any one to sign it for her. At the same time, affidavit was made on the part of Robt. L. Powell, deceased, to the effect that Cora Battle made her mark to said paper writing in the presence of affiant as subscribing witness, and that the contents were fully explained and understood by her. It was admitted on the hearing by W. R. Mann that on the same date that the renunciation purported to be signed, and in contemplation of his administering on the estate, he had procured from the widow a contract, by which he was to be allowed 25 per cent. of the entire estate, in addition to the fees allowed by law. It was also admitted by Robert Powell, the subscribing witness, that he (the witness) had a one-half interest in the contract obtained by Mann, to wit, 25 per cent. in addition to lawful fees, and that the contract and the renunciation were carried by him to Cora Battle and executed at one and the same time. The clerk found as facts that the renunciation had not been made or authorized by the widow, and found the facts also in accord with the admissions, and gave judgment of removal. On appeal, the judge affirmed the judgment of the clerk, on the ground that, under the circumstances of the parties, the obtaining of the contract in question from the widow and six of the nine children of Frank Battle, deceased, showed W. R. Mann to be an unfit person to administer on the estate; whereupon said Mann excepted and appealed, assigning for error chiefly that, the pleadings and affidavits before the clerk having raised an issue of fact, the proceeding should have been transferred to the civil issue docket for trial by jury; (2) that his honor held the obtaining of the contract showed W. R. Mann to be an unfit person, when said Mann had offered in the superior court to surrender his contract, and offered affidavits, further, of a number of citizens to the effect that he was a man of good character and good business standing in the community where he lived.
It is well understood that our clerks of the superior court, on petition filed and notice duly served, in the exercise of powers conferred upon them in matters of probate, may remove an executor or administrator for good cause shown. They make such orders, in the exercise of a legal discretion, which may be reviewed upon appeal. An application of this character is not regarded as being in the nature of an adversary proceeding, but a power conferred with a view of protecting the estate, and, because prompt action may often be necessary to this end, a clerk is not required, on issues raised, to transfer the cause to superior court for a jury trial, but may, and ordinarily should, take definite action in the premises. The practice in such cases is very well stated in Edwards v. Cobb, 95 N.C. 4-9, in which Merrimon, J delivering the opinion, said: ...
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