Jones v. . Palmer

Seaweix, J. We are constrained to affirm tbe judgment of tbe court below in declining to remove tbe administrators on practical considerations wbicb we think must bave controlled tbe clerk, and tbe judge on appeal, in their action. Tbe evidence and record show that tbe estate is practically administered, and we seriously doubt whether remaining creditors or tbe petitioning distributees will be put in a more favorable position to assert any rights they may bave or redress any wrongs they may bave received at tbe bands of the present incumbents by installing a new administration. Such action is usually instigated by tbe necessity of presently preserving tbe estate, rather than for punishment or correction of personal representatives. We wish, however, to make it clear that this decision is not an approval of tbe management of tbe estate as disclosed in tbe record, or of tbe acts and omissions of tbe respondents for wbicb removal is sought; and we do not intend to establish any precedent that tbe failure to comply with statutory or common law requirements in tbe conduct of administration and needless delay in winding up tbe estate, are not valid grounds for removal. Had tbe respondents been removed from office, we would bave felt bound upon this record to sustain it. Tbe respondents failed to file inventories required by law — one of tbe most vital requirements in aid of supervision; they did not file reports and accounts promptly; and they delayed closing tbe estate, without sufficient explanation or formal extension of time. They were dilatory in collecting assets in tbe bands of the commissioners, borrowed money and delayed repayment until tbe interest grew into large sums. On tbe other band, there is no apparent diversion of funds, and charges of waste must depend on more substantial evidence than appears in the record. What tbe outcome of tbe estate might bave been under expeditious administration is more or less a matter of speculation. It is strongly argued by petitioners that neither tbe clerk of tbe Superior Court nor tbe judge bearing tbe appeal bad any discretion in tbe matter of removal on tbe evidence developed in this case, in view of tbe peremptory phrasing of tbe statute, C. S., 31, under wbicb this proceeding is brought. With this view we cannot agree. Tbe exigencies of administration require tbe exercise of sound judgment, and this necessarily implies discretion in its supervision. This statute provides for tbe revocation of letters of administration and the removal of administrators from office upon complaint that the person to whom tbe *699 letters were issued “has been guilty of default or misconduct in the due execution of his office.” If, upon a hearing, “the objections are found valid, the letters issued to such person must be revoked and superseded and his authority shall thereupon cease.” “Must” denotes imperative action, indeed, but the action becomes imperative only when the conditions upon which it shall be taken are clear and compelling. Before taking action, the clerk must determine the validity of the charges brought against the administrators, and this, we apprehend, includes a finding of their sufficiency to justify removal, in determining which he must exercise his good judgment under the guidance of law and precedent. In re Battle, 158 N. C., 388, 74 S. E., 23. While strict supervision is demanded, no matter within the guardianship of the law calls more strongly for the application of sound business principles. Rules do not think; ministerially applied they are manifestly inadequate. The clerk is not compelled to remove an administrator for failing promptly to file an inventory when in his judgment the estate has received no damage; C. S., 48, 49; nor for failure to file account; C. S., 106; nor for delay in winding up an administration. Instead of removal, the performance of all these duties may be enforced by appropriate proceeding. Atkinson v. Ricks, 140 N. C., 418, 53 S. E., 230; Barnes v. Brown, 79 N. C., 401. But he may remove an executor or administrator for such failure, and must do so when he finds the omission of duty is sufficiently grave to materially injure or endanger the estate, or if compliance with the orders of the court in the supervision and correction of the administration are not promptly obeyed. The appeal from the judge of the Superior Court is heard upon matters of law and legal inference. Wright v. Ball, 200 N. C., 620, 158 S. E., 192; In re Will of Gulley, 186 N. C., 78, 118 S. E., 839. We do not regard the failure of the court below to find facts as material, since upon such facts as might be found from the evidence we cannot find an abuse of discretion. In sustaining the conclusion reached by the court below denying the petition to revoke the letters of administration or remove the administrators, this Court does not intend to make the findings of fact and conclusions of the clerk of the Superior Court or the judge reviewing them on appeal effective for any other purpose. They are confined to a consideration of that question alone and do not constitute res judicata in any other proceeding between the parties which the petitioners may be entitled to pursue, and are not to be taken to the prejudice of either party therein. For the reasons stated the judgment is Affirmed.