Gaskins v. McCotter , 52 N.C. App. 322 ( 1981 )

HEDRICK, Judge.

Plaintiffs sole assignment of error is set out in the record as follows:

That the Court committed error in granting the Motion to substitute B. Hunt Baxter, Jr., Trustee for Lossie V. Gaskins, as plaintiff in the place of Archie A. Gaskins, Guardian ad Litem for Lossie V. Gaskins.

This assignment of error is based upon a single exception to the entry of the order substituting B. Hunt Baxter, Jr., Trustee, as party plaintiff.

G.S. § 1A-1, Rule 17(b)(1) in pertinent part provides:

In actions or special proceedings when any of the parties plaintiff are infants or incompetent persons, whether residents or non-residents of this State, they must appear by general or testamentary guardian, if they have any within the State or by guardian ad litem appointed as hereinafter provided; but if . . . there is no such known guardian, then such persons may appear by guardian ad litem.

G.S. § 1A-1, Rule 17(b)(3) provides:

Notwithstanding the provisions of subsections (b)(1) and (b)(2), a guardian ad litem for an infant or incompetent may be appointed in any case when it is deemed by the court in which the action is pending expedient to have the infant, or insane or incompetent person so represented, notwithstanding such person may have a general or testamentary guardian.

G.S. § 33-1 in pertinent part provides:

[W]here any adult person is . . . found to be incompetent from want of understanding to manage his affairs by reason of physical and mental weakness on account of old age, disease, or other like infirmities, the clerk may appoint a trustee in lieu of a guardian for said persons. The trustee so appointed shall be subject to the laws now or which hereafter may be enacted for the control and handling of estates by guardians.

See also G.S. § 35-2.

The record before us discloses that Lossie V. Gaskins was declared incompetent by a jury on 20 October 1977, and on 26 October 1977, plaintiff Archie Gaskins petitioned the Clerk of Superior Court in Craven County to be appointed her general guardian. Thereafter, on 16 December 1977, before the clerk had ruled on plaintiffs petition, plaintiff, as guardian ad litem, initiated the present proceeding by filing a complaint in Carteret County. At that point in time, since Lossie Gaskins had no guardian within the State, plaintiff could be appointed as guardian ad litem and could maintain an action in that capacity under the statutes cited above. Thereafter, the clerk in Craven County, acting on plaintiffs petition, filed an order finding that plaintiff would not be a fit and proper person to be appointed general guardian or trustee for Lossie Gaskins, but that B. Hunt Baxter, Jr., would be such a person, and directed that Baxter be appointed as trustee of the estate of Lossie Gaskins effective 4 January 1978. As of 4 January 1978 Baxter, as trustee, became the proper person to maintain the action under G.S. § 1A-1, Rule 17(b)(1), and Archie Gaskins could maintain the action as guardian ad litem only as long as the court “deemed” it to be “expedient.” Since the court clearly had authority to determine whether it was expedient for the guardian ad litem to bring and maintain the action when the incompetent had a general guardian or trustee in this State, it manifestly had authority to substitute the general guardian or trustee as party plaintiff for the guardian ad litem.

The order appealed from is

Affirmed.

Judges Arnold and Webb concur.