IN RE:
ESTATE OF PAULINE E. MILLS,
DECEASED,
Union County
No. 05 E 247
H. Ligon Bundy, for petitioners-appellees.
Franklin S. Hancock, for respondent-appellant Jerry S. Mills.
JACKSON, Judge.
Jerry S. Mills (“respondent”) appeals from an order of the
Union County Superior Court (“the superior court”) affirming the
actions of the Clerk of the Superior Court (“the clerk”) revoking
respondent's Letters Testamentary and removing respondent as
executor of the Estate (“the Estate”) of Pauline E. Mills
(“decedent”). For the following reasons, we affirm.
In 1974, decedent executed her Last Will and Testament, which
bequeathed and devised her property equally among her five
children, to wit: Ann M. Tomberlin (“Tomberlin”), Doris M. Greene
(“Greene”), Robert D. Mills (“Mills”), Dean Mills, and respondent.
Dean Mills predeceased decedent, and in 1990, decedent executed acodicil to her will, which added (1) Tomberlin as co-executor and
(2) a provision for Dean Mills' children.
On 24 May 2004, decedent died, and on 20 May 2005, Tomberlin,
Greene, Mills, and respondent were appointed co-executors of the
Estate and issued Letters Testamentary. During the subsequent
months, respondent began to believe that Tomberlin and Greene
(collectively, “petitioners”) “had systematically depleted the
decedent's Estate both before and after her death,” and on 24
January 2006, respondent filed a motion for (1) disgorgement and
(2) removal of petitioners as co-executors. In his motion,
respondent contended that petitioners had (1) “engage[d] in the
hiding of substantial Estate assets, disregarding and 'neglecting'
their duties to disclose and/or account for same”; and (2)
“prevent[ed] [respondent] from performing his sworn duties as
Executor while disregarding their own duties.”
Petitioners responded by seeking to have respondent's Letters
Testamentary revoked. On 17 July 2006, Tomberlin and Greene
petitioned for the revocation of respondent's Letters Testamentary,
alleging that respondent had a private interest that would tend to
hinder or be adverse to the fair and proper administration of the
Estate. Specifically, petitioners alleged that respondent (1)
initiated a special proceeding in the superior court against
Wachovia Bank, N.A., purportedly in his capacity as executor of the
Estate; (2) sought recovery through the proceeding of a certificate
of deposit that he alleged was not the property of the Estate but
instead his sole property; (3) initiated the proceeding solely tofurther his own private interests; (4) initiated the proceeding
without the consent of a majority of the executors in violation of
North Carolina General Statutes, section 28A-13-6; and (5) refused
to communicate with the other executors in order to administer the
Estate in an orderly fashion.
On 28 September 2006, respondent filed a “Notice of Discovered
Property” with the superior court, alleging that he had discovered
substantial assets belonging to the Estate in petitioners' control
and that petitioners had refused in writing to provide respondent
with information or records concerning those assets. Also on 28
September 2006, respondent filed a petition for revocation of
petitioners' Letters Testamentary, alleging that respondents (1)
had fraudulently used a power of attorney and a deed to transfer
some of decedent's real and personal property to themselves; (2)
had refused to turn over records concerning decedent's property;
and (3) “continue to this date to exercise dominion and control
over assets which should properly be turned over to the Estate.”
Respondent, therefore, contended that petitioners' Letters
Testamentary should be revoked because (1) they had violated their
fiduciary duties as executors, and (2) they had private interests
that hinder the proper administration of the Estate.
On 2 October 2006, the clerk issued citations to both
petitioners and respondent to show cause as to why their Letters
Testamentary should not be revoked. On 3 October 2006, respondent
filed a motion for summary judgment, and on 11 October 2006,
petitioners filed a response. On 2 November 2006, the clerk issueda citation to Mills on the grounds that Mills (1) “may have
violated a fiduciary duty through default in the execution of his
office”; and (2) “may have a private interest that might tend to
hinder or be adverse to a fair and proper administration of the
Estate.”
On 22 November 2006, the clerk issued two orders _ the first
revoking both petitioners' and respondent's Letters Testamentary
and removing them as co-executors, and the second revoking Mills's
Letters Testamentary and removing him as co-executor. Petitioners
and respondent appealed this order to the superior court , and on 8
December 2006, the superior court filed an order affirming the
clerk's orders. Thereafter, respondent filed timely notice of
appeal.
(See footnote 1)
On appeal, respondent contends that the superior court erred
by affirming the clerk's revocation of his Letters Testamentary on
the grounds that the clerk failed to find any facts which would
support the conclusion of law that respondent has a private
interest adverse to the Estate. We disagree.
“In probate matters, . . . the Clerk of Superior Court has
original jurisdiction. After an evidentiary hearing the Clerk has
the duty to make findings of fact, to make conclusions of law, and
to enter the judgment accordingly.” In re Estate of Swinson, 62
N.C. App. 412, 415, 303 S.E.2d 361, 363 (1983). When, as in the
case sub judice, the order or judgment appealed from fails to
show any specific exceptions, and the case is
before the Superior Court, the role of the
trial judge is to review the order of the
Clerk for errors of law only. It is not
proper to have a trial de novo or to hear any
evidence in Superior Court.
Id.
This Court recently noted that “[t]he superior court . . .
only reviews those 'findings of fact which the appellant has
properly challenged by specific exceptions.'” In re Estate of
Whitaker, 179 N.C. App. 375, 382, 633 S.E.2d 849, 854 (2006)
(emphasis in original) (quoting In re Estate of Lowther, 271 N.C.
345, 354, 156 S.E.2d 693, 700.01 (1967)). “Absent exceptions to
specific findings of fact by the clerk, however, a general
exception to the judgment presents only the question whether the
facts found support the conclusions of law.” Estate of Lucas v.
Jarrett, 55 N.C. App. 185, 191, 284 S.E.2d 711, 715 (1981).
In the instant case, respondent's appeal to the superior court
did not refer specifically to any of the clerk's findings of fact.
Instead, respondent generally alleged in his notice of appeal that
the written order improperly (1) ignored certain evidence, (2)
incorporated unsworn and uncorroborated testimony of petitioners'
attorney, and (3) failed to address the issues of the alleged fraud
and misconduct by petitioners. Therefore, respondent's appeal to
the superior court constituted a general objection. See Whitaker,
179 N.C. App. at 382, 633 S.E.2d at 854.
There being only a general objection to
the Superior Court judgment, the standard for
our appellate review is whether the facts
found by the trial judge support the judgment. Because there was no objection or exception to
the de novo hearing in the Superior Court, and
no prejudicial error appears on the face of
the record, we do not examine the evidence on
which the trial judge's findings of fact are
based.
Swinson, 62 N.C. App. at 417, 303 S.E.2d at 364.
“Cases from our Supreme Court and this Court make clear that
the determination of whether to revoke an executor's Letters should
be guided by consideration of whether the Estate is harmed or
threatened with harm.” In re Estate of Monk, 146 N.C. App. 695,
698, 554 S.E.2d 370, 371 (2001), disc. rev. denied, 355 N.C. 212,
559 S.E.2d 805 (2002). Although our Supreme Court has cautioned
that “[a] testator's selection of his executor is not to be set
aside lightly,” In re Estate of Moore, 292 N.C. 58, 65, 231 S.E.2d
849, 854 (1977), North Carolina General Statutes, section 28A-9-1
provides that Letters Testamentary may be revoked for any of the
following reasons:
(1) The person to whom they were issued was
originally disqualified under the provisions
of [section] 28A-4-2 or has become
disqualified since the issuance of letters.
(2) The issuance of letters was obtained by
false representation or mistake.
(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 [section]
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.N.C. Gen. Stat. . 28A-9-1(a) (2005) (emphasis added). Furthermore,
“[i]f at the hearing the clerk of superior court finds any one of
the grounds set forth in subsection (a) to exist, he shall revoke
the letters issued to such personal representative.” N.C. Gen.
Stat. . 28A-9-1(b) (2005) (emphasis added).
In the case sub judice, the clerk found the following facts,
which, as discussed supra, are binding on appeal:
10. There is a poor personal relationship
between [respondent], on one part, and
[petitioners], on the other part. [Respondent]
has not spoken with [petitioners] for several
years. Likewise, [petitioners] have not
spoken with [respondent] for several years.
No evidence was introduced concerning the
relationship between [Mills] and the other
Executors.
11. None of the Executors has filed the
inventory of what they contend to be the real
or personal property of the Deceased, as
required by [North Carolina General Statutes,
section 28A-20-1], despite the fact that they
have been appointed for more than a year.
12. Beginning in 1996, [petitioners] and Cindy
Thompson (“Cindy”) managed some of Decedent's
financial affairs under a power of attorney.
The actions taken by [petitioners] and Cindy
under the power of attorney is the subject of
much controversy between [the Executors].
13. In 1996, [respondent] and [Mills] filed a
lawsuit in Union County Superior Court against
First Union National Bank and James Cox, . . .
(the “First Lawsuit”) to recover money (the
“Disputed Funds”). In the complaint and other
pleadings filed in that matter, [respondent]
and [Mills] alleged that they were the owners
of two separate certificates of deposit that
had been invested with the bank, and that
their mother, the Decedent, was acting as
trustee of said funds, but did not otherwise
have any ownership interest in said funds.
They further alleged that [petitioners] and
Cindy, acting under the power of attorney, hadwithdrawn the Disputed Funds from the
certificates of deposit. This lawsuit was
subsequently dismissed, several years before
the Decedent died.
14. On May 8, 2006, [respondent], acting as
Executor of the Estate, filed a Special
Proceeding in Union County Superior Court
against Wachovia Bank, NA, successor in
interest to First Union National Bank, . . .
(the “Special Proceeding”). The object of the
Special Proceeding was to recover the Disputed
Funds that had been the subject of the First
Lawsuit. In the Special Proceeding,
[respondent] alleged that the Disputed Funds
were the property of the Estate. Although
[Mills] was not a named party to the Special
Proceedings, [respondent]'s attorney has
represented to the Court that [Mills], as
Executor of the Estate, also desires to adopt
the petition filed in that matter, and attempt
to recover the Disputed Funds for the Estate.
The Special Proceeding is still pending.
15. [Respondent] testified at the hearing in
this matter that a portion of the Disputed
Funds was his property, and not the property
of the Estate. [Respondent]'s claim to the
Disputed Funds is adverse to the Estate, and
to the interests of the other heirs.
16. Based upon the above, it is apparent that
the personal interests of [respondent] with
respect to the Disputed Funds are so
antagonistic to the interests of the Estate
and those entitled to its distribution that
[respondent] cannot fairly represent both.
[Respondent] has a private interest that would
tend to hinder or be adverse to the fair and
proper administration of the Estate.
(Emphases added). Based upon these findings, the clerk concluded
that because respondent's private interest would tend to hinder or
be adverse to the administration of the Estate, the Letters
Testamentary issued to respondent should be revoked. After
reviewing the record, the superior court determined that the
clerk's findings of fact were supported by the evidence, that theconclusions of law were supported by the findings of fact, and that
the clerk's order was consistent with the conclusions of law and
applicable law.
Although respondent argues at length on appeal that he
conscientiously performed his statutorily-mandated duties and that
he performed those duties diligently and in good faith, such
arguments would serve only to rebut a finding pursuant to section
28A-9-1(a)(3) that respondent violated his fiduciary duties. See
N.C. Gen. Stat. . 28A-9-1(a)(3) (2005). The superior court,
however, made no such determination, and respondent's performance
of his duties as executor, no matter how commendable they may have
been, is immaterial with respect to whether he had a direct or
indirect private interest that might tend to hinder the
administration of the Estate. See N.C. Gen. Stat. . 28A-9-1(a)(4)
(2005).
We agree with the superior court that the clerk's findings of
fact support a determination that (1) respondent has a private
interest with respect to the certificates of deposit; and (2) such
interest might tend to hinder a fair and proper administration of
the Estate. Therefore, the clerk properly revoked respondent's
Letters Testamentary, and accordingly, we affirm the order of the
superior court affirming the order of the clerk.
Affirmed.
Judges TYSON and STROUD concur.
Report per Rule 30(e).
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