In Re Hege

ClaeksoN, J. The record discloses that: “Copies of said report were mailed to all interested parties by the clerk. After which R. C. Rights, Dora Rights, Louis Rights and Mary Lineback, filed protest against the clerk allowing commissions. A date was set for hearing on said protest and at said hearing no one appearing to substantiate said protest; the respondent moved to dismiss same and approve the report. Motion denied and respondent excepted.” It appears from the record that there were several controverted questions arising on the final report. Copies of the report were mailed to all interested parties by the clerk. They took no action before the clerk. The interested parties had a right to file a bill in equity to surcharge and falsify the account or proceed under C. S., 135. S. v. McCanless, 193 N. C., 200. C. S., 48, requires an inventory within three months. The clerk, under C. S., 49, can compel an executor to file an inventory or remove him. C. S., 105, requires an annual accounting. C. S., 106, is as follows: “If any executor, administrator or collector omits to account, as directed in the preceding section, or renders an insufficient and unsatisfactory account, the clerk shall forthwith order such executor, administrator or collector to render a full and satisfactory account, as required by law, within twenty days after service of the order. Upon return of the order, duly served, if such executor, administrator or collector fail to appear or refuse to exhibit such account, the clerk may *629 issue an attachment against him for a contempt and commit him till lie exhibit such account, and may likewise remove him from office.” 0. S., 109, provides for final account. The record shows that the clerk was diligent and active in performing his duty under the above statutes. C. S., 110, provides that creditors may bring a special proceeding for accounting. C. S., 150 — Representative must settle after two years. Public Laws, 1933, chap. 188, amends this section giving clerk authority to extend final settlement of estates for five years with approval of judge. C. S., 152, provides that after final account representative may petition for settlement. C. S., 157, commissions allowed representatives. Bank v. Bank, 126 N. C., 531; Kelly v. Odum, 139 N. C., 278; Thigpen v. Trust Co., 203 N. C., 291. C. S., 4268, is as follows: “If any person exercising a public trust or holding a public office, or any guardian, administrator, executor, trustee, or any officer or agent of a corporation, or any agent, Consignee, clerk or servant, except persons under the age of sixteen years, of any person, shall embezzle or fraudulently or knowingly and wilfully misapply or convert to his own use, or shall take, make way with or secrete, with intent to embezzle or fraudulently or knowingly and wilfully misapply or convert to his own use any money, goods or other chattels, bank notes, checks or order for the payment of money issued by or drawn on any bank or other corporation or any treasury warrant, treasury note, bond or obligation, for the payment of money issued by the United States or by any State, or any other valuable security whatsoever belonging to any other person or corporation, which shall have come into his possession or under his care, he shall be guilty of a felony, and shall be punished as in case of larceny.” The law as above set forth is ample and plenary to protect estates from the ravages of unjust stewards. Under certain circumstances they can be punished for contempt and indicted for embezzlement. It is important that the clerks should hold these fiduciaries to a strict accountability and the clerk of Forsyth County is to be commended for a compliance with the statute. While this is so, the individual is entitled to a just accounting. These disputed matters, like commissions, interest, overpayments, etc., claimed by the executor, respondent in this controversy, should be carefully gone into and considered. Testimony should be heard on each contested item and the facts carefully set out and found, and the clerk on the facts found should declare the law. The executor, as in this case, can except to the findings of fact and conclusions of law and appeal to the Superior Court. In Mordecai’s Law Lectures, Yol. 2 (2d ed.), p. 1339-40, speaking to the subject: “These ex parte accounts filed and audited are not conclusive and an estoppel on either the personal representative who files *630 them, or on the legatees and next of kin. But such an account is prima facie correct and places the burden of proof on him who alleges the contrary. Should the personal representative and beneficiaries of the estate enter into a controversy over the accounts before the clerk, and the clerk state the account in such controversy, it may be, and probably is, the law, that the account so stated would be binding and an estoppel on those participating in such controversy. In such a controversy either party, I take it, could appeal to the judge in term or out of term.” Ex Parte Spencer, 95 N. C., 271; Bean v. Bean, 135 N. C., 92; Marler v. Golden, 172 N. C., 823. C. S., 637. Now we come to consider the question of contempt. C. S., 978: “Any person guilty of any of the following acts may be punished for contempt : (subsee. 4) Wilful disobedience of any process or order lawfully issued by any court.” A contempt proceeding is sui generis. It is criminal in its nature, and that the party is charged with doing something forbidden, and, if found guilty is punished. Yet it may be resorted to in civil or criminal action. In the Matter of Lewis, 202 U. S., 514, 50 L. Ed., 1172. In contempt proceedings the facts upon which the contempt is based must be found and filed, especially the facts concerning the purpose and object of the contemnor, and the judgment must be founded on these findings. In re Odum, 133 N. C., 250; West v. West, 199 N. C., 12. Contempt proceedings is criminal in its nature, and must be construed strictly. In S. v. Banks, 143 N. C., 657, we find: “The word Svilful,’ when used in a statute creating an offense, implies the doing of the act purposely and deliberately in violation of law.” In S. v. Falkner, 182 N. C., p. 798, it is said: “The term unlawfully implies that an act is done, or not done as the law allows, or requires; while the term wilfully implies that the act is done knowingly and of stubborn purpose.” West v. West, supra, p. 15. We think that evidence should be taken by the clerk on all the disputed matters and a complete statement of the account made up by him and his conclusion of law found thereon. From the present state of the record, we cannot hold that there was a wilful disobedience of any process or order lawfully issued by the clerk. For the reasons given, the cause is Reversed and remanded.