An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-962

NORTH CAROLINA COURT OF APPEALS

Filed: 19 August 2003

IN THE MATTER OF THE
ESTATE OF LESSIE REEL
BRINSON
                            Pamlico County            & nbsp;       
                            No. 01 E 138

    Appeal by James A. Brinson from judgment entered 12 April 2002 by Judge Benjamin G. Alford in Pamlico County Superior Court. Heard in the Court of Appeals 16 April 2003.

    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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