In Re Simmons

147 S.E.2d 231 (1966) 266 N.C. 702

In the Matter of R. A. SIMMONS, Guardian of Ernie Algernon Simmons, Incompetent.

No. 203.

Supreme Court of North Carolina.

March 23, 1966.

J. Russell Kirby, Wilson, Warren & Fowler, by Miles B. Fowler, Clinton, for guardian-appellant.

Joseph B. Chambliss, Clinton, for incompetent ward, appellee.

HIGGINS, Justice.

Before the Clerk of Superior Court appoints a guardian, he must "inform himself of the circumstances of the case * * *," and "commit the guardianship * * * as he may think best for the interest * * *" of the incompetent. G.S. § 33-7. The clerk has power "on information or complaint" to remove the guardian and revoke his letters for a number of causes: "(3) Where the fiduciary neglects to * * * maintain the ward * * * in a manner suitable to [his] degree, * * * (4) Where the fiduciary would be legally disqualified to be appointed administrator * * *." G.S. § 33-9. In the absence of other matters of which the court has jurisdiction, the Superior Court has no power to appoint a general guardian. Moses v. Moses, 204 N.C. 657, 169 S.E. 273; In re Estate of Styers, 202 N.C. 715, 164 S.E. 123.

The clerk found from the guardian's reports that the net income from the ward's estate dwindled from $24,654.12 in 1961 to $3,398.50 in 1964; and that the total expenditures for the period were $5,236.22, of which $1,799.33 was for a truck, $340.00 for a refrigerator for the respondent's mother, and $103.00 for a television set. The remainder was paid for board and room for the ward. The hearing was conducted on August 30, 1965. The appellant, according to the clerk's notes of his testimony, admitted he did not go to the hospital to see Al and did not make any inquiries and had done nothing to help Al since 1964; that he intended to keep anyone else from handling the estate.

Likewise, according to the notes made by the clerk at the hearing, Mr. Honeycutt, a cousin of the guardian and the ward, who were brothers, testified Al went to the hospital, was disabled for four or five weeks, and for more than four months thereafter lived with the witness who received no pay during the disability and after that only $10.00 per week. Mrs. Honeycutt testified that the mother visited Al once during that time and R. A., not at all.

The clerk found that the guardian and the mother are the ward's next of kin and would benefit from the ward's estate at his death; that the guardian is not interested in the ward's welfare, avoids him when called on to assist, has neglected to maintain the ward in a manner suitable to his degree.

The records and summary of the evidence warrant the clerk's findings which are sufficient to support the order of removal. The defendant contends that G.S. § 1-276 applies and that the appeal required the judge to hear the controversy de novo, hear evidence, or remand to the clerk for further findings. These contentions are not sustained. Appeals under G.S. § 1-276 are confined to civil actions and special proceedings. The decisions are plenary that the removal of a guardian is neither. The distinction is this: In civil actions and special proceedings the clerk acts as a part of the Superior Court, subject to general review by the judge. In appointment and removal of a guardian the clerk performs "duties formerly pertaining to judges of probate." In the appointment and removal of guardians, the appellate jurisdiction of the Superior Court is derivative and appeals present for review only errors of law committed by the clerk. In re Will of Hine, 228 N.C. 405, 45 S.E.2d 526; Moses v. Moses, supra; Edwards v. Cobb, 95 N.C. 4, 5. In exercising the power of review, the judge is confined to the correction of errors of law. The hearing is on the record rather than de novo. In re Sams' Estate, 236 N.C. 228, 72 S.E.2d 421, citing many cases. In Sams the judge heard the appeal, apparently de novo, and affirmed the clerk. This Court affirmed upon the ground "there was no objection or exception to the de novo hearing in the Superior Court, and upon the record as presented no prejudicial error has been made to appear." In the cases in which this Court has held the judge may review the appeals from the clerk de novo, these cases involved other matters which are not exclusively of a probate nature. The other matters convert the controversy into a civil action or a special proceeding reviewable under G.S. § 1-276. Perry v. Bassenger, 219 N.C. 838, 15 S.E.2d 365; Windsor v. McVay, 206 N.C. 730, 175 S.E. 83; Wright v. Ball, 200 N.C. 620, 158 S.E. 192.

In this case, as in Sams, error of law does not appear. The judgment entered in the Superior Court is

Affirmed.

MOORE, J., not sitting.