In re the Estate of Cole

Court of Appeals of North Carolina

In re the Estate of Cole

343 S.E.2d 263, 80 N.C. App. 720, 1986 N.C. App. LEXIS 2249

CourtCourt of Appeals of North Carolina

DecidedMay 20, 1986

DocketNo. 8611SC5

StatusPublished

This text of 343 S.E.2d 263 (In re the Estate of Cole) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Estate of Cole, 343 S.E.2d 263, 80 N.C. App. 720, 1986 N.C. App. LEXIS 2249 (N.C. Ct. App. 1986).

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Opinion

WEBB, Judge.

The respondent argues that he was properly appointed administrator C.T.A. and it was error to remove him. G.S. 28A-6-2G) provides that letters of administration may not be issued to a person who does not have priority of appointment under G.S. 28A-4-1 without notice to all persons who have a higher preference of appointment. The appellee in this case is an heir at law and beneficiary under the will of Jewell Cole. She had a higher preference of appointment than respondent. The respondent should not have been appointed without notice to the petitioner and it was not error for the clerk to correct this error by removing the respondent as administrator C.T.A.

[722]*722The appellant argues that G.S. 28A-4-l(b) sets forth the priority of those to whom letters of administration may be issued but provides that the clerk may deviate from this priority if in his discretion he “determines that the best interests of the estate otherwise require.” He contends that there was no showing that he was not qualified to serve or that the clerk abused her discretion by appointing him. We do not reach this argument. Conceding that the respondent is well qualified to serve as administrator C.T.A. and that the clerk could in her discretion appoint him, the petitioner would nevertheless be entitled to notice before the appointment was made. She did not receive this notice.

The appellant also argues that the petitioner is not qualified to serve as administrator C.T.A. under G.S. 28A-4-2(4) because she is a non-resident of this state who has not appointed a process agent. We are not concerned in this case with the qualification of petitioner. Whether she can be appointed has no effect on our holding that it was not error to remove the respondent.

Affirmed.

Judges WHICHARD and JOHNSON concur.

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WEBB, Judge.

The respondent argues that he was properly appointed administrator C.T.A. and it was error to remove him. G.S. 28A-6-2G) provides that letters of administration may not be issued to a person who does not have priority of appointment under G.S. 28A-4-1 without notice to all persons who have a higher preference of appointment. The appellee in this case is an heir at law and beneficiary under the will of Jewell Cole. She had a higher preference of appointment than respondent. The respondent should not have been appointed without notice to the petitioner and it was not error for the clerk to correct this error by removing the respondent as administrator C.T.A.

[722]*722The appellant argues that G.S. 28A-4-l(b) sets forth the priority of those to whom letters of administration may be issued but provides that the clerk may deviate from this priority if in his discretion he “determines that the best interests of the estate otherwise require.” He contends that there was no showing that he was not qualified to serve or that the clerk abused her discretion by appointing him. We do not reach this argument. Conceding that the respondent is well qualified to serve as administrator C.T.A. and that the clerk could in her discretion appoint him, the petitioner would nevertheless be entitled to notice before the appointment was made. She did not receive this notice.

The appellant also argues that the petitioner is not qualified to serve as administrator C.T.A. under G.S. 28A-4-2(4) because she is a non-resident of this state who has not appointed a process agent. We are not concerned in this case with the qualification of petitioner. Whether she can be appointed has no effect on our holding that it was not error to remove the respondent.

Affirmed.

Judges WHICHARD and JOHNSON concur.

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Bluebook (online)

343 S.E.2d 263, 80 N.C. App. 720, 1986 N.C. App. LEXIS 2249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-cole-ncctapp-1986.