Sams' Estate, In re

Citation236 N.C. 228,72 S.E.2d 421
Decision Date24 September 1952
Docket NumberNo. 114,114
PartiesIn re SAMS' ESTATE.
CourtUnited States State Supreme Court of North Carolina

Clyde Roberts, Marshall, and Guy Weaver, Asheville, for Lee Sams, Administrator, appellant.

J. M. Baley, Jr., Marshall, for appellees.

JOHNSON, Justice.

The exceptive assignment to the findings of fact is broadside. Weaver v. Morgan, 232 N.C. 642, 61 S.E.2d 916; Thompson v. Thompson, 235 N.C. 416, 70 S.E.2d 495. It is insufficient to challenge the sufficiency of the evidence to support the findings or any one of them. Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351; Wilson v. Robinson, 224 N.C. 851, 32 S.E.2d 601; McIntosh, N. C. P. & P., Sec. 517. In this state of the record, the presumption is there was sufficient evidence to support the findings. Vestal v. Moseley Vending Machine Exchange, 219 N.C. 468, 14 S.E.2d 427.

The general exception to the order of the Clerk carried up for review before the Judge of the Superior Court only the question whether the facts found by the Clerk support the order. And in turn the general exception to the judgment signed by the Judge brings here for review the the single question whether the facts found support the judgment. Wilson v. Robinson, supra; Thompson v. Thompson, supra. It is manifest that both the order of the Clerk and the judgment of the Judge are supported by the facts found. G.S. §§ 28-32, 28-8 subd. 2; 21 Am.Jur., Executors and Administrators, Sec. 158; In re Battle's Estate, 158 N.C. 388, 74 S.E.23.

It is noted that the appeal from the Clerk was heard de novo by the Presiding Judge, rather than in his appellate capacity by review of the record as approved by numerous decisions of this Court: In re Estate of Johnson, 232 N.C. 59, 64, 59 S.E.2d 223; In re Will of Hine, 228 N.C. 405, 411, 45 S.E.2d 526; In re Estate of Styers, 202 N.C. 715, 164 S.E. 123; In re Estate of Wright, 200 N.C. 620, 158 S.E. 192; In re Will of Gulley, 186 N.C. 78, 118 S.E. 839; Edwards v. Cobb, 95 N.C. 4. See also: McIntosh, N. C. P. & P., Sections 65, 72, 696 and 701; Rowland v. Thompson, 64 N.C. 714; In re Estate of Edwards, 234 N.C. 202, 66 S.E.2d 675; Mills v. McDaniel, 161 N.C. 112, 76 S.E. 551. However, there was no objection or exception to the de novo hearing in the Superior Court, and upon the record as presented no prejudicial error has been made to appear. Therefore the judgment below affirming and approving the former order of the Clerk is

Affirmed.

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19 cases
  • Lowther's Estate, In re, 27
    • United States
    • United States State Supreme Court of North Carolina
    • September 20, 1967
    ...reviews any findings of fact which the appellant has properly challenged by specific exceptions. Until the decision in In re Sams, 236 N.C. 228, 72 S.E.2d 421 (1952), the procedure for determining disputed facts appears to have been as laid down by Merriman, J., in Edwards v. Cobb, supra, a......
  • Worsley v. S. & W. Rendering Co., 101
    • United States
    • United States State Supreme Court of North Carolina
    • March 3, 1954
    ...Greene v. Mitchell County Board of Education, supra, and cases cited; Greene v. Spivey, 236 N.C. 435, 73 S.E.2d 488; In re Sams' Estate, 236 N.C. 228, 72 S.E.2d 421; Parsons v. Swift & Co., 234 N.C. 580, 68 S.E.2d 296; Brown v. L. H. Bottoms Truck Lines, 227 N.C. 65, 40 S.E. 2d The full Com......
  • Pruett v. Pruett, 244
    • United States
    • United States State Supreme Court of North Carolina
    • October 30, 1957
    ...assignment of error, 'That the Court erred * * * in finding the facts * * * as contained in Judgment,' is broadside. In re Sams' Estate, 236 N.C. 228, 72 S.E.2d 421. Moreover, plaintiff, in his brief makes no contention that the evidence was insufficient to support the findings of fact or a......
  • Orr, In re, 594
    • United States
    • United States State Supreme Court of North Carolina
    • May 24, 1961
    ...116 S.E.2d 491; Jarvis v. Souther, 251 N.C. 170, 110 S.E.2d 867; Columbus County v. Thompson, 249 N.C. 607, 107 S.E.2d 302; In re Sams, 236 N.C. 228, 72 S.E.2d 421. Notwithstanding our procedural rules noted above, we have, because of the challenge to the jurisdiction of the court and the p......
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