In Re Wachovia Bank & Trust Co. , 210 N.C. 385 ( 1936 )

Connor, J.

There is error in the judgment in this case affirming the order of the clerk of the Superior Court of Forsyth County. The judgment must be reversed to the end that the order of the clerk may be set aside and vacated.

The order of the clerk, which was affirmed by the judge on the appeal of the respondent, Wachovia Bank and Trust Company, executor of George T. Brown, deceased, was not made by the clerk in the exercise of any discretion vested in him by law, or on any facts found by the clerk which would support the order. It was not suggested on the record, or found by the clerk, that as executor of George T. Brown, deceased, the Wachovia Bank and Trust Company has failed to exercise good faith or to use sound judgment in the administration of the estate of its testator. On the contrary, it is shown by the record, and was found by the clerk, that the Wachovia Bank and Trust Company has faithfully and fully performed all its duties as executor of George T. Brown, deceased, in accordance with the provisions of his will, and in accordance with the laws of this State. The order was made by the clerk in accordance with his opinion as to the law applicable to the facts found by him, and was therefore reviewable by the judge of the Superior Court of Forsyth County, on respondent’s appeal.

It is manifest from the language of his last will and testament and of the codicil thereto, that it was the intention of George T. Brown that the Wachovia Bank and Trust Company, as his executor, should not only administer his estate, but should also hold the principal amount of said estate, after the payment of his debts, in accordance with the provisions of his will. He knew that under the law of this State his executor would be required to file an account annually with the clerk of tbe Superior Court of Forsyth County, and that said account would not be accepted and filed by said clerk until it had been audited and approved by him. C. S., 105. He also knew that while ordinarily an executor, at the instance of any interested person, may be required by the clerk to file a final account for the settlement of the estate which has come into his hands under a will, at any time after two years from his qualification (C. S., 109), this statutory requirement is not applicable where the duties imposed upon the executor by the will cannot be fully performed within two years from his qualification. C. S., 178. It is apparent that the testator did not contemplate that his executor would or could be required to file a final account until it had fully performed all the duties imposed by him upon his executor. It was doubtless for these reasons, among others, that George T. Brown did not appoint a trustee, eo nominee, but was content that his executor should carry out his wishes with respect to the disposition of the property belonging to his estate. Where property, real or personal, is devised or bequeathed by a will, upon certain trusts set out in the will, and the testator does not appoint a trustee, it is the duty of the executor, who has duly qualified as required by statute, to carry out the provisions of the will. In such ease, the clerk of the Superior Court has no power to appoint a trustee, and the executor is not required to apply to the clerk for such appointment.

We find no statute in this State which supports the order of the clerk in the instant case.

It was the duty of the clerk of the Superior Court of Forsyth County, when the Wachovia Bank and Trust Company, as executor of George T. Brown, deceased, tendered its annual account for the year preceding 2 January, 1936, to accept said account for his audit and approval. C. S., 105.

There was error in the order of the clerk rejecting the annual account tendered by the respondent for his audit and approval, and directing the respondent to apply for appointment as trustee under the will. The order should be set aside and vacated. It was not authorized by the law of this State, statutory or otherwise.

The judgment affirming thé order is

Reversed.

Devin, J., took no part in the consideration or decision of this case.