Murrill v. Sandlin

• Decision Date: 28 February 1882
• Citation: 86 N.C. 54
• Court: North Carolina Supreme Court
• Parties: ELIJAH MURRILL and others v. H. H. SANDLIN, Adm'r.

86 N.C. 54

ELIJAH MURRILL and others

v.H. H. SANDLIN, Adm'r.

Supreme Court of North Carolina.

February Term, 1882.

PROCEEDING to remove an administrator, commenced before the clerk as probate judge, and heard at Spring Term, 1881, of ONSLOW Superior Court, before Graves, J.

The case was transferred to the superior court for the trial of issues of fact, and the plaintiff moved to remand it to the probate court on the ground of a want of jurisdiction of the subject matter of the controversy, as now constituted. The motion was denied, and the plaintiff excepted. Upon the trial, judgment was rendered for the defendant, and the plaintiff appealed.

A statement of the facts set out in the case is not necessary to an understanding of the opinion.Messrs. Simmons & Manly, for plaintiff .

Mr. H. R. Bryan, for defendant .

SMITH, C. J.

The jurisdiction to grant, and, for sufficient cause, recall letters testamentary and of administration, is conferred by law upon the clerk of the superior court, acting as judge of probate. C. C. P. § 418; Simpson v. Jones, 82 N. C., 323. The mode of proceeding to revoke letters that have been issued is summary, and pointed out in section 470, which provides that when “it appears to the probate judge, or if complaint is made to him on affidavit that any person to whom they were issued is legally incompetent to have such letters, or that such person has been guilty of a default or misconduct in the due execution of his office, or that the issue of such letters was obtained by false representations made by such person, the judge of probate shall issue an order requiring such person to show cause why the letters should not be revoked. On the return of such order, duly executed, if the objections are found valid, the letters issued to such person must be revoked and superseded, and his authority shall thereupon cease.”

It is thus 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...