In Re the Estate of Cogdill , 246 N.C. 602 ( 1957 )

99 S.E.2d 785 (1957) 246 N.C. 602

Matter of the ESTATE of Lula COGDILL, Deceased.

No. 25.

Supreme Court of North Carolina.

September 18, 1957.

W. M. Styles, Asheville, appellant, in propria persona.

BOBBITT, Justice.

The record discloses no action or appearance by any of the six children subsequent to their renunciation in favor of the respective nominees. Styles as nominee is the sole applicant, petitioner, movant and appellant in the successive proceedings stated above.

It would seem that as between Styles and Hennessee, nothing else appearing, the clerk had authority in his discretion to issue letters of administration to either Styles or Hennessee. In re Saville, 156 N.C. 172, 72 S.E. 220. Instead, she issued letters of administration to Thornburg. The record discloses no data concerning Thornburg's relation to the estate or any of the next of kin. His fitness to serve as administrator is not challenged.

There was no proceeding under G.S. § 28-32 for the revocation of Thornburg's letters of administration. It does not appear that Thornburg had notice of or appeared in connection with any hearing or proceeding. He makes no appearance in this Court as appellee or otherwise. Insofar as the record discloses, both G.S. § 28-32 and Thornburg were completely ignored.

If the decision below had been adverse to Thornburg, we would face the question as to whether he was subject to removal, i.e., to have his letters of administration revoked, except in a proceeding before the clerk in accordance with G.S. § 28-32. See Edwards v. McLawhorn, 218 N.C. 543, 11 S.E.2d 562; In re Palmer's Will, 117 N.C. 134, 23 S.E. 104; Edwards v. Cobb, 95 N.C. 4, 5; Murrill v. Sandlin, 86 N.C. 54.

Styles' rights, if any, to letters of administration arise solely from his status as said nominee. Absent a showing that he is legally entitled as such nominee to letters of administration, he has no interest in the estate sufficient to entitle him to challenge the issuance of letters of administration to Thornburg.

The status of a nominee for letters of administration is now defined by G.S. § 28-6(b) (Ch. 22, Session Laws of 1949), viz.: "Any person who renounces his right to qualify as administrator may at the same time nominate in writing some other qualified person to be named as administrator, and such designated person shall be entitled to the same priority of right to qualify as administrator as the person making the nomination. Provided, that the qualification of the appointee shall be within the discretion of the clerk of court." (Italics added.)

We construe the proviso to mean that the clerk in his sound discretion may refuse to issue letters of administration to a nominee if and when it is made to appear that, regardless of his personal competency, the nominee's relation to the interested parties and the estate is such that the clerk does not consider him a proper party to administer the estate. Obviously, the word "appointee" as used in the proviso refers to a person nominated for appointment in accordance with the prior provisions of this statute.

Appellant's only assignment of error is based on his exception to the court's said order of February 21, 1957. There is no exception to any finding of fact. Hence, we must accept as established the facts set forth in the court's findings. In re Sams' Estate, 236 N.C. 228, 72 S.E.2d 421.

Upon the facts found, appellant failed to show that the clerk abused her discretion in refusing to issue letters of administration to him; hence, he failed to show that he was entitled to letters of administration as a matter of law.

In relation to this record, and bearing upon the exercise of discretionary power, this statement of Ruffin, C. J., in Pratt v. Kitterell, 15 N.C. 168, 171, is appropriate: "If the litigants cannot agree upon a person, it is manifestly proper to appoint one who stands indifferent between them and will be acceptable to the creditors."

Judge Froneberger's order is affirmed.

Affirmed.