In Re Green

176 S.E.2d 19, 9 N.C. App. 326, 1970 N.C. App. LEXIS 1350

• Court: Court of Appeals of North Carolina
• Decided: August 26, 1970
• Docket: 709SC349
• Status: Published

Opinion

Parker, J.

Commissions of an administrator of the estate of a decedent are to be fixed in the discretion of the clerk of superior court subject to the maximum provided by statute. G.S. 28-170. This requires exercise of judicial discretion and judgment by the clerk, who has original jurisdiction in the matter. Trust Co. v. Waddell, 237 N.C. 342, 75 S.E. 2d 151. In other matters relating to the administration of decedents’ estates the clerk also exercises jurisdiction as ex officio judge of probate according to the practice and procedure provided by law. G.S. 7A-241; G.S. 2-1. Under these statutes the petition in the present case for allowance of commissions and attorneys’ fees was initially properly brought before the clerk of superior court.

After hearing testimony of witnesses and examining the official records in his office, the clerk entered his order making findings of fact upon which he based his conclusions of law and judgment. The respondent took no exception to any specific finding of fact made by the clerk but took only a general exception to the judgment entered by the clerk. On appeal to the judge of superior court, respondent’s general exception to the clerk’s order presented only the question whether the facts found support the conclusions of law. In re Estate of Lowther, 271 N.C. 345, 156 S.E. 2d 693. The judge of superior court, by entering an order making the same findings of fact and conclusions of law as had been made by the clerk, in effect ruled that the facts found support the conclusions of law. We agree with that ruling. The order appealed from is

Affirmed.

Campbell and Vaughn, JJ., concur.