In Re the Estate of Edwards

EeviN, J. The appeal presents this solitary question: Did the judge err in affirming the order of the clerk refusing to grant administration to the petitioner? The right to administer on the estate of an intestate is entirely statutory. Generally speaking, the right is given to the surviving spouse, the next of kin, the creditors, and other persons legally competent, in the order named. G.S. 28-6. As here used, the term “next of kin” means those persons who take the surplus of the personal estate of an intestate under the statute of distribution. Henry v. Henry, 31 N.C. 278; Weaver v. Lamb, 140 Iowa 615, 119 N.W. 69, 22 L.R.A. (N.S.) 1161, 17 Ann. Cas. 947. Since the decedent left no widow, the petitioner, as his only child, takes the entire surplus of his personal estate under subdivision four of the statute of distribution, G.S. 28-149. In consequence, the petitioner is the sole next of kin, and as such is the party primarily entitled to administration. Moreover, he has made timely application to the proper Clerk, i.e., the Clerk of the Superior Court of Edgecombe County, for appointment as administrator. G.S. 28-15. These things being true, the peti *204 tioner bas an absolute legal right to receive letters of administration, unless he is disqualified. Williams v. Neville, 108 N.C. 559, 13 S.E. 240; In re Bailey Will, 141 N.C. 193, 53 S.E. 844. The order of the clerk holds that the petitioner is not entitled to administration on the estate of his deceased father, and assigns as the reason for such holding that the petitioner is under the disqualification defined by this statutory provision: “The clerk shall not issue letters of administration ... to any person who, at the time of appearing to qualify . . . (4) is adjudged by the clerk incompetent to discharge the duties of such trust by reason of . . . want of understanding.” G.S. 28-8. The record on this appeal discloses that the supposed factual foundation underlying the order, i.e., that the petitioner is incompetent to discharge the duties of an administrator by reason of want of understanding, is not supported by evidence received by the clerk in open court. Indeed, the record shows that the conclusion of the clerk as to the alleged incompetency of the petitioner rests upon undisclosed and unrecorded information obtained by the clerk from third persons outside of court in the absence of the petitioner and his counsel, who were not apprised of the identity of such third persons or accorded any opportunity to cross-examine or confute them. The conduct of the proceeding by the clerk contravenes the law of the land clause embodied in Article I, Section 17, of the North Carolina Constitution, which guarantees to the litigant in every kind of judicial proceeding the right to an adequate and fair hearing before an impartial tribunal, where he may contest the claim set up against him, and be allowed to meet it on the law and the facts and show if he can that it is unfounded. Eason v. Spence, 232 N.C. 579, 61 S.E. 2d 608; Surety Corp. v. Sharpe, 232 N.C. 98, 59 S.E. 2d 593. The order of the clerk nullifies the petitioner’s constitutional right to an adequate and fair hearing, for manifestly there is no hearing in any real sense when the litigant does not know what evidence is received and considered by the court, and is not accorded any opportunity to cross-examine the witnesses against him or to offer testimony in explanation or rebuttal of that given by them. Interstate Commerce Commission v. Louisville & N. R. Co., 227 U.S. 88, 57 L. Ed. 431, 33 S. Ct. 185. For the reasons given, the order and judgment are vacated and the proceeding is remanded to the Superior Court of Edgecombe County with directions that the clerk proceed to determine the question of fact involved in the cause in a manner consistent with the petitioner’s constitutional right to an adequate and fair hearing. Error and remanded. ValeNtiN®, J., took no part in the consideration or decision of this case.