In Re Will of L. D. Gulley , 186 N.C. 78 ( 1923 )

Claeb:, C. J.

The application for letters testamentary was made by E. K. Gulley and counsel were heard on both sides, as was also the hearing before the judge on the appeal from the clerk. The applicant for letters of administration, E. K. Gulley, was a nonresident and was required by the statute to give bond. C. S., 34. It was necessary for him to take the oath prescribed, C. S., 39, and that the amount of the bond should be fixed by the clerk of the Superior Court at “at least double the value of all the personal property of the deceased, such value to be ascertained by tbe clerk by examination on oatb of tbe applicant or some other competent person.” 0. S., 33.

E. K. Gulley, wbo offered bimself, as executor, baying1 refused to make any statement disclosing tbe nature and tbe amount of tbe property in bis bands belonging to tbe estate, tbe clerk was justified in refusing to allow bim to qualify as executor. Under section 0. S., 31, tbe clerk is given power to revoke letters testamentary, and for tbe same causes be would certainly bave tbe right to refuse to issue letters testamentary. In this case, tbe misconduct having occurred prior to tbe issuing of tbe letters, tbe clerk was authorized to refuse to issue letters testamentary to one wbo bad refused to obey tbe legal orders of tbe clerk in taking proper steps under tbe statute for supervision of tbe administration of tbe estate and tbe action of tbe judge in approving tbe order of tbe clerk is approved.

Tbe clerk was authorized to issue letters to any suitable person in tbe place of tbe defaulting applicant. It appears that prior to tbe application of E. K. Gulley tbe widow bad qualified as administratrix and bad by injunction stopped tbe payment of an alleged draft for $18,600 given by tbe testator on bis deathbed to said E. K. Gulley. Had letters testamentary been issued to tbe executor, tbe appointment of tbe widow as administratrix should bave been set aside, but, as upon tbe aforesaid action of tbe executor tbe clerk refused to issue letters testamentary to bim, and that has been approved by tbe judge, tbe duly issued letters of administration to tbe widow remain in full force and effect.

It is in tbe province of tbe clerk of tbe Superior Court to pass upon tbe matter of qualification of an executor, subject to tbe right of tbe judge of tbe Superior Court to review bis judgment on appeal, and subject to tbe right of appeal to tbe Supreme Court as to matters of law only.

This appeal affects and approves tbe refusal of tbe letters testamentary. It will in no wise affect tbe rights of parties in interest to file caveat, if so advised, as to tbe will.

Affirmed.