Lowther's Estate, In re, 27

• Decision Date: 20 September 1967
• Docket Number: No. 27,27
• Citation: 271 N.C. 345,156 S.E.2d 693
• Court: North Carolina Supreme Court
• Parties: In re ESTATE of Isham LOWTHER, Deceased.

Page 693

156 S.E.2d 693

271 N.C. 345

In re ESTATE of Isham LOWTHER, Deceased.

No. 27.

Supreme Court of North Carolina.

Sept. 20, 1967.

W. L. Whitley, Plymouth, for petitioner appellant.

C. L. Bailey, Jr., Bailey & Bailey, Plymouth, for respondent appellee.

SHARP, Justice.

The clerk of the Superior Court has express authority under G.S. § 28--32 to revoke letters of administration which were improperly issued and to remove any administrator who has been guilty of default or misconduct in the execution of his office. (For the technical distinction between revocation and removal, see 33 C.J.S. Executors and Administrators § 84b (1942).) When, upon disputed facts, the clerk removes an administrator who appeals, under what circumstances and to what extent does the judge review the clerk's findings of fact? The state of our decisions requires an examination of the history of the clerk's authority as judge of probate and an analysis of the cases in order to answer the question posed by this appeal.

In the absence of a constitutional or statutory requirement providing for a jury trial, probate proceedings are heard by the court without the intervention of a jury 'since the constitutional guaranty is limited to the right of trial by jury as it existed prior to the adoption of the Constitution and the right never existed in such matters which belonged historically to the ecclesiastical jurisdiction.' 31 Am.Jur. Jury § 30 (1958). 'Probate courts, having always proceeded without the intervention of a jury, are not within the application of the constitutional provisions relating to the right to a jury trial. * * * (T) he right exists only as to the matters specified by statute.' 50 C.J.S. Juries § 13 (1947).

The Constitution of 1868, art. IV, § 17, gave the clerks of the Superior Court general probate jurisdiction and directed that '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.' This constitutional provision was incorporated as § 490 in the Code of Civil Procedure of 1868 as compiled by Barringer, Rodman, and Tourgee. With reference to § 490, in Rowland v. Thompson, 64 N.C. 714, 716, 718 (1870), the Court said:

'An issue of fact is one made by the pleadings, and no other; it does not include every question of fact which may collaterally come before the Probate Judge in the course of taking an account. Heilig v. Stokes, 63 N.C. 612. For example, if in answer to a complaint against a guardian, the defendant should deny that he had ever been guardian, or should set up a release from his ward after his coming of full age; and the plaintiff should take issue on the denial, or should reply generally to the allegation of a release, issues of fact would be joined such as are intended in the act, and which, as they can only be tried by a jury, must be transferred to the Superior Court for trial.

'The final decision of the Probate Judge will generally embrace the determination both of matters of fact and of matters of law, and upon an appeal both must be reviewed. The Judge may decide on the questions of fact, as well as of law, without the aid of a jury; but it may be that some of the questions of fact are so important and difficult that he may be unwilling to do so. In such a case we think it would be within his power, as it formerly was in that of a Judge in equity, to make up issues of fact and submit them to a jury.'

The Constitutional Convention of 1875 struck out § 17 of art. IV. In re Estate of Styers, 202 N.C. 715, 164 S.E. 123; Brittain v. Mull, 91 N.C. 498 (1884). Since then the jurisdiction of the clerks of the Superior Courts with reference to the administration of estates of deceased persons has been altogether statutory. In re Estate of Wright and Wright v. Ball, 200 N.C. 620, 158 S.E. 192. Section 102 of N.C. Code of 1883--now G.S. § 2--1--abolished the office of probate judge and transferred the duties which the clerks had previously performed as judges of probate to them as clerks of the Superior Court. Brittain v. Mull, supra. In the exercise of his probate jurisdiction, however, the clerk is now authorized to sign his orders and judgments 'Clerk Superior Court, Ex Officio Judge of Probate.' N.C.Sess.Laws 1951, ch. 158.

Although the office of probate judge was abolished, the special probate powers and duties of the clerk continued distinct and separate from their general duties as clerk of the courts to which they belong. In re Estate of Pitchi, 231 N.C. 485, 57 S.E.2d 649; Moses v. Moses, 204 N.C. 657, 169 S.E. 273; In re Estate of Styers, supra; Edwards v. Cobb, 95 N.C. 4, 5. '(B)ut,' as Merriman, J., said in Brittain v. Mull, supra, 'in respect to their jurisdictional functions, they are in convenient relation to their respective courts.' In laying down the rules of procedure in probate proceedings, he said:

'The purpose of the statute (Code of 1883, § 102) seems to be to charge such clerks with such special jurisdictional authority, in order to avoid a multiplicity of officers, and facilitate the decisions of questions of law arising in matters before them, by a judge of the superior court, and The trial of issues of fact so arising, under the supervision of such judge, and as well to economize in respect to time and costs. * * * and sec. 116 (Code of 1883) prescribes how issues of fact raised in matters so before the clerk shall be tried in term time, and questions of law so decided by the clerk and excepted to, shall be decided by the judge in or out of term time.

'If issues of fact are joined before the clerk in such matters, these and the pleadings upon which they arise must be Transferred (sec. 116,) to the superior court, that is, to another jurisdiction, in such respect to be there tried. And when the issues are so tried, the court remands the same and the pleadings or papers with the findings of the jury upon them, and the clerk will then proceed with the matter according to law. This provision has reference to issues of fact.' Brittain v. Mull, supra at 500--501. (Emphasis added.)

The provisions of § 116 of the Code of 1883 are now contained in G.S. § 1--174 and G.S. § 1--272.

G.S. 1--174 provides: 'All issues of fact joined before the clerk shall be transferred to the superior court for trial at the next succeeding term, and in case of such transfer neither party is required to give an undertaking for costs.'

G.S. 1--272 provides:

'Appeals lie to the judge of the superior court having jurisdiction, either in term time or vacation, from judgments of the clerk of the superior court in all matters of law or legal inference. In case of such transfer or appeal neither party need give an undertaking for costs; and the clerk shall transmit, on the transfer or appeal, to the superior court, or to the judge thereof, the pleadings, or other papers, on which the issues of fact or of law arise. An appeal must be taken within ten days after the entry of the order or judgment of the clerk upon due notice in writing to be served on the appellee and a copy of which shall be filed with the clerk of the superior court. But an appeal can only be taken by a party aggrieved, who appeared and moved for, or opposed, the order or judgment appealed from, or who, being entitled to be heard thereon, had no opportunity of being heard, which fact may be shown by affidavit or other proof.'

In Brittain v. Mull, supra, it was pointed out that Code § 116 applied to the clerk's probate jurisdiction, which is separate and distinct from his general duties as clerk and that Code § 256 (now G.S. 1--273) applied to the transfer of cases to the civil issue docket 'in the same court and jurisdiction--not to the superior court, another jurisdiction. * * *' Id. at 503.

In authorizing the clerk to remove executors and administrators for cause, G.S. § 28--32 does not specifically direct the manner in which the facts shall be ascertained, 'but it plainly implies that he shall act promptly and summarily,' and, pending any litigation in that respect, he has power to make all necessary and interlocutory orders for the protection of the estate. Edwards v. Cobb, supra.

In Murrill v. Sandlin, 86 N.C. 54 (1882), a proceeding to remove an administrator, the Court said:

'It is * * * incumbent on the Probate Judge to make the inquiry, and ascertain for himself the facts upon which the legal discretion reposed in him to remove an incompetent or unfaithful officer is to be exercised. The original authority to act is delegated to him alone, and he may require the whole issue made between the parties, or any specific question of fact, to be tried by a jury, under the supervision of the Judge of the Superior Court. When these have been determined by the jury, the Probate Judge, with such supplemental findings of fact by himself as may be necessary, proceeds to decide the question of removal, subject to the right of either party to the contest to have the cause reheard upon appeal.' Id. at 55.

A proceeding to remove an executor or administrator 'is neither a civil action nor a special proceeding.' In re Estate of Galloway, 229 N.C. 547, 551, 50 S.E.2d 563, 566; In re Estate of Styres, supra; Edwards v. Cobb, supra. See In re Simmons, 266 N.C. 702, 147 S.E.2d 231. Therefore, G.S. § 1--276, which provides that '(w)henever a civil action or special proceeding begun before the clerk of a superior court is for any ground whatever sent to the superior court before the judge, the judge has jurisdiction * * *,' has no application to probate matters.

'(The purpose of a proceeding to remove an executor or administrator) is not to litigate the alleged rights and liabilities of adverse parties * * * but it is to require one who is charged by the law with special duties and trusts, for whosoever may be interested, to show cause why * * * he shall not be removed from his place or office, because of some...