King v. Snyder

Bobbitt, J. Defendant’s general exception to Judge McLean’s order does not present for review the admissibility of the evidence on which the findings of fact are based or the sufficiency of the evidence to support the findings. 1 Strong, N. C. Index (and Supplement), Appeal and Error § 22. Assignment of error No. 14 asserts “the Court erred in finding the facts and signing the Order denying defendant’s Motion to Dismiss.” The broadside assignment is ineffectual as a challenge to the findings of fact or as to the competency or sufficiency of the evidence pertinent thereto. Moreover, “(a)ssignments of error unsupported by an exception duly taken and preserved will not be considered on appeal.” Hicks v. Russell, 256 N.C. 34, 39, 123 S.E. 2d 214, 218, and cases cited. Hence, we pass, without discussion, assignments of error Nos. 2-12, relating to rulings on evidence. The remaining assignments of error assert the court erred “in overruling defendant’s Motion to Dismiss at the close of the presentation of the record evidence” (Assignment No. 1) and “in overruling defendant’s Motion to Dismiss for lack of jurisdiction” (Assignment No. 13). If the question were properly before Judge McLean for determination, his finding of fact that Humphreys, at the time of his death on September 5, 1963, was a resident of and domiciled in Caldwell County, North Carolina, would be conclusive as to the authority of the Clerk of the Superior Court of Caldwell County to appoint an administrator for the estate of Humphreys. G.S. 28-1(1). It is noteworthy that the Clerk of the Superior Court of Caldwell County would have authority to appoint an administrator of the estate of Humphreys if he were not domiciled in this State at the time of his death but died in Caldwell County leaving assets in this State. G.S. 28-1 (4); In re Administration of Franks, 220 N.C. 176, 16 S.E. 2d 831. Defendant did not testify. Evidence offered in his behalf tended to show Humphreys and his wife, Carolyn J. Humphreys, had not *152 separated; that Humphreys, a textile worker, although he was employed and actually resided in Caldwell County, North Carolina, visited his wife and children about every other week-end (and contributed to their support) in Monroe County, Tennessee, where they resided and where he had been born and reared. Suffice to say, evidence offered by defendant was sufficient to support, but not to compel, a finding that Humphreys, although temporarily residing in Caldwell County, North Carolina, was a domiciliary of Monroe County, Tennessee. Included in the evidence offered by defendant was a copy of letters of administration issued October 7, 1963, by the Clerk of the County Court of Monroe County, Tennessee, to Carolyn J. Humphreys as administratrix of Plumphreys. For present purposes, we treat the copy as sufficiently authenticated. Defendant contends the letters of administration issued October 7, 1963, in Tennessee to Carolyn J. Humphreys, are not subject to attack by plaintiff in this action. He cites and stresses the decisions of this Court in Tyer v. Lumber Co., 188 N.C. 274, 124 S.E. 306, and Hines v. Foundation Co., 196 N.C. 322, 145 S.E. 612. He bases his contention on the legal proposition stated in Hines as follows: “It is generally held that a grant of letters of administration which is not void, although it may be voidable, is not open to collateral attack; such attack can be sustained only upon the ground that upon the face of the record, the court granting the letters, and making the appointment, was without jurisdiction.” In Hines, Connor, J., cites Tyer, discussed below, and also Holmes v. Wharton, 194 N.C. 470, 140 S.E. 93; Batchelor v. Overton, 158 N.C. 395, 74 S.E. 20; Fann v. R. R., 155 N.C. 136, 71 S.E. 81. In Holmes and Fann, both wrongful death actions, and in Batchelor, a claim and delivery action, it was held that the defendant could not in such action attack (collaterally) the validity of the plaintiff’s letters of administration. Accord: Wharton v. Ins. Co., 178 N.C. 135, 100 S.E. 266. The Tyer case cited by defendant (188 N.C. 274) will be referred to as the Craven County case. Another Tyer case, not cited by defendant, Tyer v. Lumber Co., 188 N.C. 268, 124 S.E. 305, will be referred to as the Beaufort County case. Irving Tyer was killed while working for defendant. An administrator was appointed in Beaufort. Subsequently, an administratrix was appointed in Craven. The Beaufort administrator instituted an action in Beaufort, and the Craven administratrix instituted an action in Craven, each seeking to recover damages from defendant on account of the alleged wrongful death of Irving Tyer. In each county, the defendant, by motion addressed to the clerk of the superior court, moved that the *153 letters of administration he had issued be revoked. In the Beaufort County case, the clerk, based on findings of fact, held the Beaufort County administration was valid and denied the defendant’s motion; and the judgment of the superior court, which affirmed the clerk’s order, was affirmed by this Court. In the Craven County case, this Court reversed the judgment of the superior court and held the purported appointment in Craven was invalid, citing the statute now codified as G.S. 28-2 and providing: “The clerk who first gains and exercises jurisdiction under this chapter thereby acquires sole and exclusive jurisdiction over the decedent’s estate.” The procedure in each of the Tyer cases was by direct attack in the probate court where the appointment was made. In this connection, see Reynolds v. Cotton Mills, 177 N.C. 412, 99 S.E. 240. In Hines, James Hines sustained a fatal injury in Guilford County. An administrator appointed by the Clerk of the Superior Court of Durham County instituted this action for wrongful death. There was a jury trial in which it was found that the widow of decedent had qualified as administratrix in South Carolina and as ad-ministratrix had settled the claim for wrongful death and had executed and delivered a release. Recovery was denied on the ground the action was barred by said release. The plaintiff was not permitted to attack in that action the validity of the South Carolina administration. Thus, in Hines, an administrator appointed in this State was not permitted to attack collaterally, that is, in the wrongful death action in this State, the appointment in South Carolina of an administratrix with whom defendant had effected a settlement of the wrongful death claim. The factual situation in each of the cited cases is quite different from that in the present case. Here defendant moved successfully to vacate and set aside a judgment by default and inquiry. He filed answer in which he alleged he was appointed in Caldwell County as administrator of the estate of Humphreys. Then, after the cause was at issue and awaiting trial, he moved to dismiss on the ground his own appointment is invalid. There is a procedure by which an administrator may resign. G.S. 36-9 et seq. A person appointed administrator and acting in that capacity in defending a wrongful death action is estopped from asserting therein the invalidity of his own asserted status as such administrator. Whatever the rights of others, we are of opinion, and so decide, that the defendant, whose sole relationship to this action derives from his appointment as administrator by the Clerk of the Superior Court of Caldwell County, cannot attack herein the validity of his own appointment. No issue or question relating to the Tennessee letters of admin *154 istration is raised by the pleadings. Neither plaintiff nor. defendant is attacking letters of administration issued in Tennessee. As stated, the sole attack is by defendant administrator upon the validity of his own letters of administration. It is noted, that nothing appears in the record to indicate that the Tennessee administratrix has made any settlement of the claim for Stafford’s alleged wrongful death or that any demand has been made upon the Tennessee administratrix in connection therewith. Unquestionably, Carolyn J: Humphreys, as widow or as ad-ministratrix under appointment In Tennessee, or any other party in interest, has the right to attack directly defendant’s status as administrator before the Clerk of the Superior Court of Caldwell County by motion that the clerk vacate and set aside the letters of administration issued to defendant as void for want of jurisdiction. This procedure was approved in In re Bane, 247 N.C. 562, 101 S.E. 2d 369, where a Florida administratrix moved before the Clerk of the Superior Court of Durham County that letters of administration issued by said clerk in Durham County be vacated and set aside on the ground that the residence and domicile of decedent at the time of his death was not in Durham County, North Carolina, but in Orange County, Florida. Defendant’s motion to dismiss should have been denied on the ground he is estopped to challenge the validity of his own appointment. Since the question was not properly before him, it was error for Judge McLean to hear evidence and make findings of fact pertinent to the validity of defendant’s appointment as administrator in Caldwell County. Hence, the findings of fact and conclusions of law stated in Judge McLean’s order will be stricken therefrom. It is so ordered. However, Judge McLean’s order, to the extent it simply denies defendant’s motion to dismiss for lack of jurisdiction, is affirmed. Modified and affirmed.