Jones v. Palmer

• Citation: 2 S.E.2d 850,215 N.C. 696
• Decision Date: 31 May 1939
• Docket Number: 606.
• Parties: JONES et al. v. PALMER et al.
• Court: North Carolina Supreme Court

2 S.E.2d 850

215 N.C. 696

JONES et al. v. PALMER et al.

No. 606.

Supreme Court of North Carolina

May 31, 1939

The petitioners sought the removal of the respondents as administrators of the estate of John W. Odom, deceased setting up, upon the demand of the respondents and the order of the Clerk, a bill of particulars containing specific charges of alleged misconduct in the management of the estate.

Included in the charges were: A failure to file inventory; payment of claims barred by the statute of limitations; retention as commissions of a greater sum than that allowed by law; delay in collection of assets for long periods of time; acceptance of bids at auction sales contrary to law; failure to close up sales promptly, and loss of money through this source failure to report sales of property made at private sale failure to collect money from commissioners who had made sales of land to create assets; unnecessary delay in payment of debts, causing loss because of accrued interest; the unauthorized payment of attorneys' fees; and long delay in closing the administration, with attendant detriment and loss to the estate. In view of the decision reached, it is unnecessary to analyze the voluminous evidence presented to the Court in support of these contentions.

Upon the hearing before the Clerk of the Superior Court, the petition was denied and petitioners appealed to the Superior Court, where, before Bivens, Judge, a like result followed and petitioners appealed.

Fred J. Coxe, of Wadesboro, and J. C. Sedberry, of Rockingham, for appellants.

R. L. Smith & Sons, of Albemarle, and Rowland S. Pruette, of Wadesboro, for appellees.

SEAWELL Justice.

We are constrained to affirm the judgment of the court below in declining to remove the administrators on practical considerations which we think must have controlled the clerk, and the judge on appeal, in their action.

The evidence and record show that the estate is practically administered, and we seriously doubt whether remaining creditors or the petitioning distributees will be put in a more favorable position to assert any rights they may have or redress any wrongs they may have received at the hands of the present incumbents by installing a new administration. Such action is usually instigated by the necessity of presently preserving the estate, rather than for punishment or correction of personal representatives.

We wish, however, to make it clear that this decision is not an approval of the management of the estate as disclosed in the record, or of the acts and omissions of the respondents for which removal is sought; and we do not intend to establish any precedent that the failure to comply with statutory or common law requirements in the conduct of administration and needless delay in winding up the estate, are not valid grounds for removal. Had the respondents been removed from office, we would have felt bound upon this record to sustain it.

The respondents failed to file inventories required by law--one of the most vital requirements in aid of supervision; they did not file reports and accounts promptly; and they delayed closing the estate, without sufficient explanation or formal extension of time. They were dilatory in collecting assets in the hands of the commissioners, borrowed money and delayed repayment until the interest grew into large sums. On the other hand, there is no apparent...