In Re Administration of the Estate of Ryan

Petition to vacate letters of administration. From a judgment granting the petition respondent appeals. On 14 August, 1922, E. T. Kemp was appointed administrator of the estate of Frank Ryan, deceased, by the clerk of the Superior Court for New Hanover County, upon representation duly made to him that the deceased was domiciled in said county at the time of his death.

On 25 September, 1922, H. J. Marshall was appointed administrator of the estate of Frank Ryan, deceased, by the clerk of the Superior Court for Pender County, upon representation duly made to him that the deceased was domiciled in said county at the time of his death.

This proceeding is brought by H. J. Marshall, who was appointed administrator of the estate of Frank Ryan by the clerk of the Superior Court for Pender County, to have the letters of administration, granted to E. T. Kemp by the clerk of the Superior Court for New Hanover County, vacated and set aside, or revoked, upon the ground that the deceased was never a resident of, or domiciled in, the county of New Hanover.

Upon competent evidence, the clerk found, among other things, that Frank Ryan, at the time of his death, was a resident of, and domiciled in, the county of Pender, State of North Carolina; that he had never been a resident of, or domiciled in, New Hanover County. The petition to recall or to revoke the letters of administration theretofore issued by him to the respondent, E. T. Kemp, was thereupon allowed and judgment entered accordingly. The matter was heard de novo on appeal from the clerk, before his Honor, E. H. Cranmer, who, after considering the evidence, approved the clerk's findings and affirmed his judgment. In this we find no error.

Domicile is a question of fact and intention; and upon the facts found here, the judgment must be upheld. In re Martin, 185 N.C. 472. See, also,Reynolds v. Cotton Mills, 177 N.C. 412, where the subject is fully discussed in an opinion by Walker, J.

Affirmed.