In re Administration of the Estate of Ryan, 187 N.C. 569 (1924)

April 16, 1924 · Supreme Court of North Carolina

187 N.C. 569

In re ADMINISTRATION OF THE ESTATE OF FRANK RYAN Deceased.

(Filed 16 April, 1924.)

Executors and Administrators — Letters of Administration. — Petition to Vacate — Procedure.

Where letters of administration have been granted upon the estate of a decedent by the clerks of the court of two different counties, it is a proper procedure to petition one of these clerks to vacate the letters granted by the other; and where his order allowing the prayer of the petition finds both the facts and intent of domicile to have been within the county wherein the petition was filed, his ruling will be upheld.

Appeal by respondent from Granmer, J., at December Term, 1923, of New HaNOVer.

Petition to vacate letters of administration. From a judgment granting the petition respondent appeals.

John D. Bellamy & Sons for petitioner.

Rodgers & Rodgers for respondent.

Stacy, J.

On 14 August, 1922, E, T. Kemp was appointed administrator of the estate of Frank Eyan, 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 Eyan, deceased, by the clerk of the Superior Court for Pender Oounty, 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 Eyan 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 Eyan, 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 Oounty. 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 tbe .clerk, before bis Honor, E. H. Cranmer, wbo, after considering tbe evidence, approved tbe clerk’s findings and affirmed bis judgment. In tbis we find no error.

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

Affirmed.