In re Styers' Estate

• Decision Date: 11 May 1932
• Docket Number: 563.
• Citation: 164 S.E. 123,202 N.C. 715
• Parties: In re STYERS' ESTATE.
• Court: North Carolina Supreme Court

164 S.E. 123

202 N.C. 715

In re STYERS' ESTATE.

No. 563.

Supreme Court of North Carolina

May 11, 1932

Appeal from Superior Court, Davie County; Clement, Judge.

Luther West was nominated by Viola Styers, widow of Fred Styers, as administrator of the deceased's estate, and, over the protest of J. C. Styers and others, appointed. From the judgment declaring him incompetent and appointing a third party of judge's own selection, the administrator appealed.

Error.

Fred Styers died May 28, 1931, leaving a widow, Viola Styers, and a son, Henry Ford Styers, who is about twelve years of age. The widow renounced her right to administer on the estate of her deceased husband and nominated Luther West for appointment. J. C. Styers on behalf of himself and his brothers and sisters protested the appointment of West on the following grounds: (1) Fred Styers was shot and killed by John Henry Hauser, who has been convicted of murder in the first degree; (2) the estate of Fred Styers has a cause of action for wrongful death against John Henry Hauser; (3) Viola Styers is a daughter of John Henry Hauser and upon his death will inherit a part of his estate; (4) her nominee, if appointed administrator, will be under her influence and will not bring suit for the wrongful death of the deceased; (5) her interests are adverse to those of her deceased husband's estate; (6) she is disqualified to act as personal representative of his estate and to nominate the appointee; (7) Luther West is a brother-in-law of Floyd Hauser, a son of John Henry Hauser, subject to his control and disqualified to act.

The clerk appointed Luther West as administrator and the protestant excepted and appealed to the superior court. At the December term the trial judge held that by reason of antagonistic interests Viola Styers is disqualified and should not be heard to nominate the appointee, and that Luther West for specified reasons is likewise incompetent. The judge thereupon appointed a third party of his own selection and authorized the appointee to give bond and enter upon the administration of the estate. Luther West excepted and appealed.

Jacob Stewart, of Mocksville, for appellant.

Elledge & Wells, of Winston-Salem, for appellee.

ADAMS J.

The appellant contests the power of the presiding judge, after reversing the order of the clerk, to retain jurisdiction and appoint the administrator. If this position is sustained the other exceptions may be disregarded.

The Constitution of 1868 contained the following section "The clerks of the superior courts shall have jurisdiction of the probate of deeds, the granting of letters testamentary and of administration, the appointment of guardians, the apprenticing of orphans, to audit the accounts of executors, administrators, and guardians, and of such other matters as shall be prescribed by law. All issues of fact joined before them shall be transferred to the superior courts for trial, and appeals shall lie to the superior courts from their judgments in all matters of law." Article 4, § 17.

Pursuant to this constitutional provision the General Assembly enacted statutes prescribing the qualification and general duties of clerks of the superior courts while acting in the respective capacities of clerks and of judges of probate. Battle's Revisal 1873: Code Civil Procedure, c. 8; Probate Courts, c 90. These statutes were designed to indicate and to stress the distinction between the general duties and the special jurisdiction of a clerk of the superior court. In the performance of his general duties he kept a record of his official acts, issued process, and entered in the dockets of his office minutes of all proceedings. As a separate department of the court he exercised jurisdiction in matters of probate. On appeal from the clerk it became necessary to determine whether the appellate jurisdiction was derivative, and it was held that the judge should decide the question presented and, if derivative and further action was necessary, should remand the case to the clerk. Accordingly, it was said in Pearce v. Lovinier, 71 N.C. 248, that upon appeal from an order of the clerk appointing or removing an administrator the superior court had jurisdiction, not to make the appointment or removal, but merely to issue a procedendo requiring the clerk to appoint a suitable person to administer the estate.

The Convention of 1875 struck out section 17, art. 4, of the Constitution of 1868, and substituted sections 16 and 17 of article 4 of the present Constitution, which provide that clerks shall be elected by the qualified voters and shall hold their offices for four years. The clerks now have no...