In re Last Will & Testament of Taylor

HEDRICK, Judge.

G.S. 28A-9-l(a) (3) and (4) provide:

“Revocation after hearing.— (a) Grounds. — Letters testamentary, letters of administration, or letters of collection may be revoked after hearing on any of the following grounds:

(3) The person to whom they were issued has violated a fiduciary duty through default or misconduct in the execution of his office, other than acts specified in G.S. 28A-9-2.

(4) The person to whom they were issued has a private interest, whether direct or indirect, that might tend to hinder or be adverse to a fair and proper administration. The relationship upon which the appointment was predicated shall not, in and of itself, constitute such an interest.”

Petitioner’s three assignments of error present the single question of whether the findings of fact made by the clerk support his conclusions that respondent acted in bad faith in carrying out his fiduciary duties as administrator, c.t.a., that he was guilty of misconduct in the execution of his office, and that he has a private interest that might hinder or be adverse to a proper administration of the estate.

While the letter described in the findings of fact might be characterized as harassing to the petitioner and over zealous on the part of respondent, we find nothing therein tending to show a violation of respondent’s fiduciary duties as administrator, c.t.a.; therefore, all of the findings of fact made by the clerk with respect to the letter are irrelevant, and do not support the conclusions that respondent acted in bad faith in carrying out his fiduciary duties or was guilty of misconduct in the execution of his office. Nor does the finding that respondent and petitioner are tenants in common of certain real property of the estate which is liable for debts of the estate to the extent that the personal property is insufficient to pay such debts support the conclusion that respondent had a private interest that might tend to hinder or be adverse to a fair and proper administration of the estate. Morgan v. Morgan, 156 N.C. 169, 72 S.E. 206 (1911).

We hold that Judge McLelland did not err in declaring that the findings of fact made by the clerk do not support the conclusions of law drawn therefrom and in reversing the order of the clerk removing the respondent as administrator, c.t.a. of the estate of J. B. Taylor.

Affirmed.

Judges Britt and Clark concur.