In Re Palmer's Will.

• Decision Date: 29 October 1895
• Citation: 117 N.C. 133,23 S.E. 104
• Court: North Carolina Supreme Court
• Parties: In re PALMER'S WILL.

23 S.E. 104

117 N.C. 133

In re PALMER'S WILL.

Supreme Court of North Carolina.

Oct. 29, 1895.

Removal of Executor—Appointment of Collector.

After letters testamentary have issued to an executor, the clerk of the superior court cannot, upon the filing of a caveat, remove such executor, and appoint a collector for the estate, without a hearing, as his authority under Code, § 2160, is limited to the issuance of an order staying all further proceedings except the preservation of the property and the collection of the debts until a decision of the issue is had.

Appeal from superior court, Wake county; Coble, Judge.

In the matter of the will of Prank Palmer. E. A. Johnson, as executor under the will, was removed by the clerk of the superior court, and J. C. Marcom appointed collector of the estate. From an order setting aside said removal, J. C. Marcom appeals. No error.

Argo & Snow, for appellant

Battle & Mordecai, for appellee.

MONTGOMERY, J. The question for consideration is: Can the clerk of the superior court, after a will has been admitted to probate in common form, and letters testamentary issued to the executor, remove such executor, and appoint a collector for the estate, without a hearing based upon notice to show cause why he should not be removed? We are of the opinion that he cannot. In this case the caveat was filed after the will had been proved and the executor qualified. Under this condition of facts, it was the duty of the clerk, upon the giving by the caveators of the bond required by law, to have transferred the case to the superior court for trial, and also to have issued an order to the executor, Johnson, the appellee, requiring him to preserve the prop-erty and collect the debts of the decedent until the issue devisavit vel non should be determined. Code, § 2160. Instead of doing this, he, on the caveat being entered, ordered that the probate be recalled, and that the letters testamentary which he had issued to the executor be revoked; no notice to show cause why this should not be done having been given, nor any cause shown. The clerk afterwards refused to set aside his order revoking the letters testamentary, and appointed J. C. Marcom collector.

Section 2160 of the Code is in these words: "Where a caveat is entered and bond given as directed in the two preceding sections, the clerk of the superior court shall forthwith issue an order to any personal representative having the estate in charge to suspend all further proceedings in relation to the estate except the preservation of the property and the collection of the debts until a decision of the issue is had." It is clear that the appellee should have received this order from the clerk, for he was the personal representative, —the executor duly qualified; and he it was who had the property of his decedent in charge at the time the caveat was filed. Section 2160 of the Code is section 25 of chapter 119 of Battle's Revisal; and this court, in the case of Syme v. Broughton, 86 N. C. 157, in reference to this statute, said: "That the object of the legislature in enacting it was evidently intended to restrict the powers of an executor or administrator with the will annexed, but that the restriction extended no further than to restrain such officer from executing the will according to its provisions, not affecting the other powers of his office." And in the same case the court went on to say: "We think the proper construction of section 25, c. 119, Battle's Revisal (section 2160 of the Code), is that after probate granted in common form, and there is an executor who acts, or an administrator with the will annexed appointed, his office is intended to be continued during a...