Pearce v. Lovinier
| Decision Date | 30 June 1874 |
| Citation | 71 N.C. 248 |
| Parties | WM. H. PEARCE and another v. J. C. LOVINIER, Executor, . |
| Court | North Carolina Supreme Court |
Upon appeal to the Superior Court, from an order of the Probate Judge appointing or removing an administrator or executor, the Superior Court does not acquire jurisdiction to appoint or remove such persons; but, when necessary, after determining the questions presented by the record, must issue a procedendo to the Probate Judge, requiring him to appoint some proper person to administer the estate.
( Mitchell v. Biddle, ante, cited and approved,)
MOTION to the Probate Judge of CRAVEN county to remove the defendant, as executor, carried by appeal to the Superior Court of said county, where it was heard by his Honor Judge Clarke, at Spring Term, 1874.
The allegations of the petition and the facts found by the Probate Judge are fully set out in the opinion of the Court.
On the hearing below, his Honor remanded the cause to the Probate Court to require the executor to give bond, or to remove him in case of his failure to do so. From this judgment defendant appealed.
Haughton and Smith & Strong, for appellant .
Stephenson and Green and Battle & Son, contra .
This was an application by creditors to the Probate Judge to remove an executor, on the ground of fraud and incompetency. Upon hearing the motion and affidavits the Probate Judge found:
1. That the plaintiffs are creditors of the estate of Sarah J. Lovinier.
2. That at the time J. C. Lovinier, the executor of Sarah J. Lovinier, filed an affidavit and prayed for an order of the Court to allow him to sell real estate for the payment of the debts of his testatrix, he had sufficient assets in his hands to pay the debts of his testatrix, and the charges of administration, as appears by his account current, recorded in book 312 of accounts for Craven county.
3. That J. C. Lovinier is guilty of a devastavit in this--that his acts of negligence, carelessness, and mal-administration has been such as to defeat the rights of the creditors and legatees under the will of his testatrix.
And thereupon he revoked the letters testamentary theretofore issued to the defendant, and ordered that the estate of the testatrix be placed in the hands of the public administrator of Craven county for settlement.
From this judgment the defendant appealed to the Superior Court, when his Honor, upon consideration of the affidavits, pro and con, ordered that “the proceedings be remanded...
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Lowther's Estate, In re, 27
...of administration' must be commenced before the clerk who issued them in the first instance, Ledbetter v. Lofton, 5 N.C. 224; Pearce v. Lovinier, 71 N.C. 248; Murrill v. Sandlin, supra; and (3) that the judge of the Superior Court has no jurisdiction to appoint or remove an administrator or......
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In re Styers' Estate
...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, upon appeal from an order of the clerk appointing or removing an administrator the superior court had jurisdiction, not to make th......
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In Re Styers' Estate.
...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 m......