In re Gulley's Will
| Citation | 118 S.E. 839,186 N.C. 78 |
| Decision Date | 19 September 1923 |
| Docket Number | 107. |
| Parties | IN RE GULLEY'S WILL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wayne County; Daniels, Judge.
Application before the clerk of the superior court by E. K. Gulley, for letters testamentary under the will of L. D. Gulley, in which the applicant was named as executor. An order by the clerk denying the application was affirmed by the superior court and the applicant appeals. Affirmed.
Where a will was admitted for probate in common form, but letters testamentary refused to an applicant, affirmance of the order held not to affect the rights of parties in interest to file caveat to the will.
This was a judgment by the clerk of the superior court of Wayne denying the application of E. K. Gulley for letters testamentary. On appeal to Daniels, J., at chambers, the judgment was affirmed and E. K. Gulley appealed. L. D Gulley, resident in Wayne county, died at a hospital in Miami, Fla., February 19, 1923, leaving a will purporting to have been executed on January 7, 1923. E. K. Gulley offered the said will for probate on May 28, 1923. The widow and certain of the children, as well as E. K. Gulley, were represented by counsel. Counsel for both sides being present in the offices of the clerk, it was agreed that the probate of said will in common form should in no way prejudice the rights of the parties, and especially the right to contest the qualification of the said E. K. Gulley as executor.
On May 30, 1923, the said E. K. Gulley appeared before the clerk of said court and demanded that letters testamentary be issued to him, counsel for both sides being present, and the widow of said testator and certain of her children contesting his appointment as executor. It also appeared that on January 7 1923, the date of the execution of the will, E. K. Gulley was present with the deceased at the hospital at Miami, Fla., and also on January 17, 1923, where a check was executed in blank by the testator and filled in at the direction of said E. K Gulley for the sum of $18,600, payable to the said E. K Gulley, the said amount being all the funds the testator had in the bank.
The alleged will gave very broad powers to the executor, conferring power to sell at his discretion all the valuable real estate and other property belonging to the testator, upon such terms and at such price as he should see fit. The said E. K. Gulley is not a resident of North Carolina, but is, and has been for many years, a resident of Worth county, Ga.
At the time of the hearing before the clerk of the superior court on May 30, 1923, counsel for those opposing E. K. Gulley as executor asked that he be sworn in order that he might disclose his knowledge of the estate of the testator, and of what property it consisted, and also that he might be examined for the purpose of throwing light upon his fitness or unfitness to be qualified as such executor. He declined to testify or to make any statement concerning his knowledge of the affairs of the estate, though he had in his possession since the death of the testator a satchel containing the valuable papers and securities of the testator. Upon such refusal to be examined by the clerk or to give evidence as to the value of the property of the estate, the clerk denied his application for letters as executor, especially as he had...
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