IN THE MATTER OF THE
ESTATE OF LESSIE REEL
BRINSON
Pamlico County &
nbsp;
No. 01 E 138
Ayers & Haidt, P.A., by James M. Ayers, II, for appellant.
Lee, Hancock & Lassiter, P.A., by Moses D. Lassiter and
Wallace, Morris & Barwick, P.A., by Richard F. Landis, II and
Kimberly A. Connor, for Moses D. Lassiter and Richard F.
Landis, II, co-executors.
ELMORE, Judge.
Lessie Reel Brinson (decedent) died testate on 25 August 2001.
In her will, decedent made provision for her three adult children,
Milton D. Brinson, James A. Brinson (appellant), and Ellen Brinson
Johnson, to share in the estate. The will appointed Milton D.
Brinson to serve as executor, but he predeceased the decedent. The
will did not appoint an alternate executor.
Appellant filed an application to qualify as the estate
administrator on 15 November 2001. The Clerk of Superior Court in
Pamlico County denied appellant's application and appointed instead
Moses D. Lasitter, the family attorney, as executor and Richard F.
Landis, II as co-executor. Appellant filed an appeal to thePamlico County Superior Court. The superior court reviewed the
order of the clerk, heard evidence in the form of affidavits and
live testimony, and affirmed the order of the clerk. Appellant
brought this appeal on 30 April 2002.
On appeal to this Court, appellant makes the following
assignments of error: 1) the superior court improperly denied
appellant's application to be appointed administrator of decedent's
estate; 2) the superior court improperly denied appellant's right
to a hearing de novo; and 3) the superior court improperly affirmed
the clerk of court's order appointing Moses D. Lassiter and Richard
F. Landis, II as co-executors. We consider each argument in turn.
By appellant's first assignment of error, he contends that the
superior court improperly denied his application for appointment as
administrator of decedent's estate. Appellant argues that, as an
heir of decedent, he was entitled to appointment because of his
priority of appointment under the relevant statutory scheme. We
disagree.
Section 28A-4-1(b) of our General Statutes provides the order
of preference for persons qualified to serve as administrator of an
estate. According to the statute, “[l]etters of administration
shall be granted to persons who are qualified to serve, in the
following order, unless the clerk of superior court in his
discretion determines that the best interests of the estate
otherwise require . . . .” N.C. Gen. Stat. § 28A-4-1(b) (2001)
(emphasis added). We agree that, were appellant qualified to serve
as administrator, the provisions of N.C. Gen. Stat. § 28A-4-1(b)would give appellant, as an heir of decedent, priority over the
appointed co-executors. By the terms of the statute, however,
qualification to serve as administrator is a prerequisite to
consideration of priority. Appellant was not so qualified.
Pursuant to N.C. Gen. Stat. § 28A-4-2, a person is
disqualified from serving as an executor or administrator of an
estate if the clerk of superior court finds that the person is, for
some reason, unsuitable. N.C. Gen. Stat. § 28A-4-2(9) (2001). In
the present case, the clerk testified before the superior court
that, in considering appellant's application, he was concerned
about the strained relationship that existed between appellant and
his sister, the only two heirs to decedent's estate. The clerk had
knowledge that appellant and his sister had a history of non-
cooperation in administering other family estates and the clerk
testified that, in light of this animosity, he felt appellant could
not represent the best interests of the estate. For this reason,
the clerk exercised his discretion under N.C. Gen. Stat. § 28A-4-
2(9) and determined that appellant was not qualified to serve as
administrator.
The clerk's decision is further supported by case law. In In
re Moore, 292 N.C. 58, 231 S.E.2d 849 (1977), the North Carolina
Supreme Court held that “when it appears that the personal
interests of the prospective executor are so antagonistic to the
interests of the estate and those entitled to its distribution that
the same person cannot fairly represent both, [the prospectiveexecutor] is unsuitable and disqualified as a matter of law.” Id.
at 65, 231 S.E.2d at 854.
The clerk's determination that appellant was unsuitable to act
as administrator of decedent's estate was supported by the evidence
of animosity that existed between appellant and his sister.
Furthermore, the clerk's denial of appellant's application was
supported by statutory and case law. We therefore hold that the
superior court properly affirmed the clerk's denial of appellant's
application for appointment as administrator of decedent's estate.
Next, appellant contends that the superior court improperly
denied his right to a hearing de novo. However, appellant is not
entitled to a de novo hearing on appeal to superior court of a
probate matter determined by the clerk. In re Estate of Longest,
74 N.C. App. 386, 390, 328 S.E.2d 804, 807 (1985). Pursuant to
N.C. Gen. Stat. § 1-301.3, on appeal of estate matters determined
by the clerk, the superior court shall review the order or judgment
of the clerk for the purpose of determining: 1) whether the
findings of fact are supported by the evidence; 2) whether the
conclusions of law are supported by the findings of facts; and 3)
whether the order or judgment is consistent with the conclusions of
law and applicable law. N.C. Gen. Stat. § 1-301.3(d) (2001).
The record shows that the superior court considered the
evidence of animosity between appellant and his sister, including
affidavits submitted by appellant and live testimony from both the
clerk and appellant's sister. The court determined that the
evidence supported the clerk's conclusion that appellant wasunsuitable to serve as administrator and that the clerk's decision
to deny appellant's application was properly within his discretion.
It is clear from this that appellant was afforded at least the
level of review provided by N.C. Gen. Stat. § 1-301.3(d).
Appellant's second assignment of error is, therefore, overruled.
By his final assignment of error, appellant contends that the
superior court improperly affirmed the clerk's order appointing
Moses D. Lassiter and Richard F. Landis, II as co-executors of
decedent's estate. Appellant's argument, however, is based on
appellant's priority of appointment over the co-executors pursuant
to N.C. Gen. Stat. § 28A-4-2. For reasons already set forth,
appellant was not qualified to serve as administrator of the
estate, and qualification to serve is a prerequisite to any
consideration of priority under N.C. Gen. Stat. § 28A-4-2.
Accordingly, we hold that the superior court's decision to affirm
the clerk's order appointing the co-executors was proper.
Affirmed.
Judges MARTIN and HUDSON concur.
Report per Rule 30(e).
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