In re Estate of Loflin, 224 N.C. 230 (1944)

April 12, 1944 · Supreme Court of North Carolina

224 N.C. 230

In re Estate of S. T. LOFLIN, Deceased.

(Filed 12 April, 1944.)

1. Executors and Administrators § 4—

Where a son of an intestate, who left a widow, was appointed administrator and shortly thereafter the widow filed her renunciation of prior right and requested the appointment of another, the clerk’s notice to the son, already appointed, to show cause on 6 September why his appointment should not be revoked, was served on 4 September, and respondent personally appeared on 6 September and objected that the notice did not provide sufficient time, refusing an offer of continuance. Held: Respondent was in court and the clerk acted properly in revoking his appointment.

2. Same—

The appointment of one as administrator of an estate should be revoked upon renunciation of the widow,, who has a prior right to administer the estate or to nominate in her steacl, and the clerk of the court has jurisdiction and should appoint on her request a fit and competent person nominated by her. G. S., 28-32, 28-20 (3), 28-15.

Appeal by respondent W. H. Loflin from Warlick, J., at September Term, 1943, of RaNdolph.

Affirmed.

This was a proceeding before the clerk for the appointment of an administrator of the estate of S. T. Loflin.

The material facts involved in the appeal were these: The decedent S. T. Loflin died 24 July, 1943, leaving him surviving his widow, Margaret E. Loflin, and ten children. August 2Y, 1943, the clerk appointed a son, W. H. Loflin, administrator of the estate. September 1st the widow filed with the clerk notice of her renunciation of her prior right to administer and requested in writing that ~W. B. Millikan, the Public Administrator, be appointed administrator in her stead. Thereupon the clerk issued notice to W. PC. Loflin to show cause on September 6th why his appointment as administrator should not be revoked. This notice was served September 4th. On September 6th the respondent W. H. Loflin appeared specially with counsel and moved that the proceeding be dismissed for want of service and for the further reason that the notice did not give proper time. The clerk found that he had been properly served and was in court, and overruled his motion. Offer was made to continue the hearing to another time if respondent desired further time. No request for extension having been made, the clerk proceeded to hear the matter, and ruled that under the statute the widow had prior right to administer, and that, upon her renunciation and nomination in her stead of the Public Administrator, ~W. B. Millikan, who was found to be a fit and competent person, the letters of administration theretofore issued to respondent should be revoked, and W. B. Millikan appointed administrator of the estate.

Respondent appealed to the judge of the Superior Court, who found the facts to be substantially as found by the clerk, and affirmed his order. Respondent appealed to the Supreme Court, assigning error.

Jofin G. Preveite for respondent, appellant.

J. A. Spence for petitioner, appellee.

DeviN, J.

The respondent- appealed from the judgment below upon the ground that the notice to him to show cause why the letters of administration previously issued to him should not be revoked did not provide sufficient time; and further that the orders of the clerk were improperly entered. Neither of these grounds can avail the respondent. If the time fixed in the notice to show cause was too short, the notice was not void, and was duly served. At tbe time designated in tbe notice respondent was personally present, and offer was made to bim to extend tbe time for sucb period as be might desire. Tbis offer be declined. Thus be was afforded full opportunity to be beard. Stafford v. Gallops, 123 N. C., 19, 31 S. E., 265; Nall v. McConnell, 211 N. C., 258, 190 S. E., 210.

It is apparent upon tbe facts found, wbicb are not controverted, tbat another bad prior right to administer tbe estate, and tbat tbe clerk acted properly in moving to revoke an appointment wbicb bad been improvidently made. Neither by lapse of time nor by any act on her part bad tbe widow of tbe decedent lost any of her rights in tbe premises, either to administer or to nominate a fit and competent person for appointment in her stead. Tbe rulings of tbe clerk and tbe judgment of tbe judge in affirmance were in accord with tbe well settled principles of law applicable to tbe settlement of estates. G. S., 28-32; G. S., 28-20 (3); G. S., 28-15; In re Estate of Smith, 210 N. C., 622, 188 S. E., 202; Williams v. Neville, 108 N. C., 559, 13 S. E., 240; Little v. Berry, 94 N. C., 433.

Tbe respondent’s plea to tbe jurisdiction is without merit. Tbe Superior Court bad jurisdiction both of tbe subject matter and tbe parties. Murrill v. Sandlin, 86 N. C., 54.

Tbe judgment appealed from is

Affirmed.