In Re Bane

101 S.E.2d 369 (1958) 247 N.C. 562

In the Matter of Henry BANE, Administrator of the Estate of Charles William Hill, Deceased.

No. 670.

Supreme Court of North Carolina.

January 10, 1958.

Spears & Spears, Durham, for movant, appellant.

Bryant, Lipton, Strayhorn & Bryant, Durham, for appellee.

BOBBITT, Justice.

Appellee's contention that movant is proceeding under G.S. § 28-32, notwithstanding she did not so specify, is untenable. G.S. § 28-32 prescribes procedure for the removal of a particular person as administrator for causes specified therein; and, upon removal of such person, "the clerk must immediately appoint some other person to succeed in the administration of the estate." G.S. § 28-33; Harrison v. Carter, 226 N.C. 36, 36 S.E.2d 700, 164 A.L.R. 697.

Rightly interpreted, the motion is a direct attack upon the jurisdiction of the clerk to issue letters of administration to any person. No question is raised as to the competence or conduct of Bane. The motion is to vacate and set aside the letters of administration issued to Bane as void for want of jurisdiction. They are void unless the clerk had jurisdiction of the subject matter. Hart v. Thomasville Motors, 244 N.C. 84, 92 S.E.2d 673; High v. Pearce, 220 N.C. 266, 17 S.E.2d 108. If, as movant alleged, decedent's residence and domicile at the time of his death was not in Durham County, North Carolina, but in Orange County, Florida, the clerk had no jurisdiction of the subject matter. In re Ryan's Estate, 187 N.C. 569, 122 S.E. 289; In re Martin's Estate, 185 N.C. 472, 117 S.E. 561; Reynolds v. Lloyd Cotton Mills, 177 N.C. 412, 99 S.E. 240, 5 A.L.R. 284.

There was evidence, which, if accepted, was sufficient to support movant's said allegations. However, neither the clerk nor the judge made a finding of fact determinative of the crucial question, whether decedent's residence and domicile at the time of his death was in Durham County.

Absent any finding as to this jurisdictional fact, we need not consider (1) whether the judge would be bound by appropriate findings of fact made by the clerk (Compare Aylor v. Barnes, 242 N.C. 223, 87 S.E.2d 269, and cases cited), or (2) whether the judge would be bound by such findings of fact in the absence of exceptions directed to specific findings. As to the latter, it is noted that In re Sams' Estate, 236 N.C. 228, 72 S.E.2d 421, and cases cited, involve proceedings under G.S. § 28-32. In re Ryan's Estate, supra, and In re Martin, supra, would seem relevant.

The finding by the judge, noted in the above statement of facts, that the clerk "had jurisdiction of the subject matter and of the parties to this proceeding," when considered in context, connotes nothing more than a finding that this proceeding was duly constituted and properly before him. It falls far short of a finding of fact as to decedent's residence and domicile. The so-called findings of fact in the clerk's judgment are legal conclusions.

The record presents no question as to an ancillary administration in Durham County. The letters of administration issued to Bane were based solely on the recital or finding "that Charles William Hill, late of the said (Durham) County, is dead, without having made and published any last will and testament." Neither in said letters nor in the evidence does it appear that, when Bane was appointed, there was in North Carolina any property belonging to the decedent's estate or any person to whom the estate was indebted.

It is noted (1) that the record contains no evidence relating to the civil action referred to in Bane's answer to Mrs. Hill's motion, and (2) that nothing in the record indicates the interest, if any, of Bane or of any person at whose instance he applied for letters of administration, in the decedent's estate.

The judgment, because not supported by determinative findings of fact on the crucial (jurisdictional) question presented, must be and is vacated; and the cause is remanded for further hearing and findings of fact as to decedent's residence and domicile at the time of his death, that is, findings of fact determinative of the clerk's jurisdiction to issue letters of administration relating to decedent's estate.

Error and remanded.