In Re Last Will & Testament of Taylor

238 S.E.2d 774 (1977) 293 N.C. 511

In the Matter of the last Will and Testament of J. B. TAYLOR, Deceased.

No. 22.

Supreme Court of North Carolina.

November 11, 1977.

Graham, Manning, Cheshire & Jackson by Lucius M. Cheshire, Hillsborough, for petitioner-appellant.

Latham & Wood by B. F. Wood, Burlington, for respondent-appellee.

BRANCH, Justice.

We note that the Court of Appeals decided this case upon the assumption that the statutory provisions of Chapter 28A were applicable. Chapter 1329 of the Session Laws of 1973 repealed Chapter 28 and enacted Chapter 28A in lieu thereof. Section 5 of Chapter 1329 provides: "This act shall be effective on and after July 1, 1975." Chapter 19, Section 12 of the Session Laws of 1975 stated: "Section 5 of Chapter 1329 of the 1973 Session Laws is hereby amended following the word ``effective' by inserting the words ``as to the estates of decedents dying'." This act became effective on 27 February 1975. Chapter 1329 of the 1973 Session Laws was again amended by the 1975 Legislature by the enactment of Chapter 118 which provided:

Section 1. Chapter 1329 of the Session Laws of 1973, codified as Chapter 28A of the General Statutes, entitled "Administration of Decedents' Estates", is amended by changing the effective date in Section 5 thereof from "July 1, 1975" to "October 1, 1975".

Sec. 2. This act shall become effective upon ratification.

In the General Assembly read three times and ratified, this the 9th day of April, 1975.

The language of Chapter 118 of the 1975 Session Laws could be interpreted to mean that Chapter 28A became effective, without limitation, on 1 October 1975; however, in view of the fact that the last enactment in Chapter 118 did not repeal Chapter 19, Section 12, of the 1975 Session Laws, we conclude that the Legislature intended to only insert the date October 1, 1975, in lieu of the date July 1, 1975. Thus, Section 5 of Chapter 1329 of the 1973 Session Laws as amended would now read as follows: "Sec. 5. This act shall be effective as to the estates of decedents dying on and after October 1, 1975." Since decedent J. B. Taylor died in 1973, the relevant statutes in Chapter 28 would still be applicable to decision of this appeal.

The sole question presented by this appeal is whether the trial judge erred in concluding that the findings of fact in the Clerk's order of 29 April 1976 did not support the conclusions of law entered therein.

G.S. 28-32, in pertinent part provides for the revocation of letters of administration by a Clerk of Superior Court when the administrator "has been guilty of default or misconduct in due execution of his office." The other causes for revocation of letters of administration set forth in that statute do not apply to the facts before us.

When the Clerk exercises the powers of revocation vested in him by this statute, his action is reviewable on appeal. In Re Estate of Galloway, 229 N.C. 547, 50 S.E.2d 563. Upon appeal to the Superior Court, the trial judge may review any of the Clerk's findings of fact when the finding is properly challenged by specific exception and may thereupon either affirm, modify or reverse the challenged findings. However, absent exceptions to specific findings of fact, a general exception to the judgment only presents the question of whether facts found support the conclusions of law. In Re Estate of Lowther, 271 N.C. 345, 156 S.E.2d 693. In the case before us, specific exceptions were taken to each of the crucial findings of fact.

It is obvious that petitioner relies principally upon her Exhibit 1, the letter from attorney Cooper to attorney Cheshire, to support her motion to remove. She argues that the content of this letter shows respondent to be so partial, biased and lacking in integrity that he should be removed from his office as Administrator C.T.A. It is true that this Court has consistently approved the removal of administrators and executors who were guilty of default or misconduct in the execution of the duties of their office. This Court found no error in the removal of an executor who refused to pay the widow her share from the sale of personalty of the estate and arbitrarily commingled her funds with estate funds. In Re Estate of Boyles, 243 N.C. 279, 90 S.E.2d 399. This Court has also upheld removal of an administrator who obtained a contract from an illiterate widow which granted to him and another person 25 percent of the assets of the estate in addition to the legal fees allowed him by law. In Re Battle, 158 N.C. 388, 74 S.E. 23. It is apparent that each of the cases above reviewed involves default in the execution of the duties of the office of administrator or executor or involve actual misconduct. The facts of these cases are a far cry from the actions of respondent as revealed by the contents of petitioner's Exhibit 1 and the Clerk's findings based thereon.

Upon his appointment and qualification as Administrator C.T.A., it became the duty of respondent to collect the assets of the estate and to pay therefrom debts, taxes, and cost of administration until all were paid or the assets of the estate exhausted. If the assets of the estate were not exhausted, it then became his duty to distribute the remaining personalty coming into his hands in accordance with the provisions of the will of J. B. Taylor. N.C.G.S. Chapter 28 (1966) (repealed 1975); 31 Am. Jur.2d, Executors and Administrators, sec. 6, page 30. It must be borne in mind that respondent owed a duty to faithfully discharge the duties of his office not only to the widow but to all persons who took under the will of J. B. Taylor.

The entire content of the letter from Mr. Cooper to Mr. Cheshire was directed toward executing respondent's duty to collect the assets of the estate. Perhaps the demands and contentions set forth in the letter were overblown and excessive, but it is not unusual for counsel when dealing with adverse counsel to "puff his wares" by making strong demands and then retreating to reasonable grounds for the purpose of making settlement. Even so, it must be remembered that this was not a letter directed to an illiterate and legally unrepresented person. It was a letter from one competent, knowledgeable attorney to another competent, knowledgeable attorney. When read in context the letter is, in fact, conciliatory and expressive of a desire to follow a course which would permit respondent to speedily perform his duties without further litigation and the accompanying needless exhaustion of the funds of the estate. We, therefore, conclude that none of the Clerk's conclusions are supported by his findings numbers 4, 5, 6, 7, 8, 9 and 10. The remaining crucial findings of fact are numbers 3 and 12.

Finding of fact number 3 stated:

That D. Wayne Taylor, Administrator C.T.A., filed an annual account on the 30th day of July, 1974, and had not filed a further accounting until after the petition herein was filed; however, the Administrator C.T.A. was never notified by the Court to file an accounting.

This finding does not support conclusions 1 and 2 relating to respondent's misconduct in office or bad faith in carrying out his duties as Administrator C.T.A.

In Jones v. Palmer, 215 N.C. 696, 2 S.E.2d 850, Justice Seawell speaking for the Court said:

The clerk is not compelled to remove an administrator for failing promptly to file an inventory when in his judgment the estate has received no damage; C.S., 48, 49; nor for failure to file account; C.S., 106; nor for delay in winding up an administration. Instead of removal, the performance of all these duties may be enforced by appropriate proceeding. Atkinson v. Ricks, 140 N.C., 418, 53 S.E. 230; Barnes v. Brown, 79 N.C., 401. But he may remove an executor or administrator for such failure, and must do so when he finds the omission of duty is sufficiently grave to materially injure or endanger the estate, or if compliance with the orders of the court in the supervision and correction of the administration are not promptly obeyed.

Finding of fact number 3 does not show that the estate of J. B. Taylor was endangered or any interested party injured by the late filing of accounts. Neither does the finding show any non-compliance with orders of the court. In fact, this record at one point discloses an oral statement by the Clerk who signed the order of removal to the effect that the late filing did not harm or prejudice the estate or any interested party.

Finally, we consider finding of fact number 12. This finding simply stated that petitioner and respondent owned certain lands which had been devised to them by the last will and testament of J. B. Taylor as tenants in common, and that the land was subject to lien. If this finding supported any conclusion of law made by the Clerk, it would be conclusion number 3 which concluded that the Administrator C.T.A. had a private interest which "might tend to hinder or be adverse to a fair and proper administration of the estate."

In Morgan v. Morgan, 156 N.C. 169, 72 S.E. 206, an heir at law sought to remove an administrator on the ground of adverse interest because the administrator owned jointly with the estate certain personal property in which he was claiming the whole ownership. There was no evidence of bad faith or fraudulent concealment, and the administrator was holding the property intact and under bond. The clerk denied the motion to remove, and on appeal the judge of superior court reversed. This Court in reversing the superior court judgment stated:

. . . The administrator cannot be removed solely because he has personal property in his possession in which it is claimed his intestate had a half interest, in the absence of any findings of bad faith and fraudulent concealment.

* * * * * *

In the case at bar the distributee is at no disadvantage. He may contest the title to this property in dispute in a proceeding by himself against the defendant and his bond for a final accounting and settlement of the estate.

We fail to discern how the joint ownership of this real property would furnish any basis for finding that respondent was guilty of default or misconduct in the execution of his office as Administrator C.T.A. Petitioner was in possession of the personal property belonging to the estate and could dispute any action by which the Administrator C.T.A. sought to misuse the property. She also had a remedy against his bond if he committed any act or default in the handling of this property. Finding of fact number 12 did not support any of the Clerk's conclusions of law.

We hold that the Clerk's findings of fact would not support a conclusion that D. Wayne Taylor while acting as Administrator C.T.A. of the estate of J. B. Taylor acted in bad faith, had a private interest that would hinder the proper administration of the estate or that he was guilty of any default or misconduct in the execution of his office as Administrator C.T.A.

The decision of the Court of Appeals affirming the judgment of Judge McLelland entered on 17 June 1976 in this cause is,

AFFIRMED.