In re the Estate of Collins

Court of Appeals of North Carolina

In re the Estate of Collins

293 S.E.2d 835, 58 N.C. App. 568, 1982 N.C. App. LEXIS 2804

CourtCourt of Appeals of North Carolina

DecidedAugust 3, 1982

DocketNo. 8130SC1119

StatusPublished

This text of 293 S.E.2d 835 (In re the Estate of Collins) 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.

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In re the Estate of Collins, 293 S.E.2d 835, 58 N.C. App. 568, 1982 N.C. App. LEXIS 2804 (N.C. Ct. App. 1982).

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Opinion

MARTIN (Harry C.), Judge.

Obviously this matter has been unnecessarily complicated and protracted. Apparently, nothing, at least at the time of the appeal, had been done with respect to the complaint filed by the sister and answer thereto filed by the wife, administratrix. In any event, this appeal is premature. Judge Thornburg, in his discretion, ordered a trial by jury of the issue of fact raised by the “pleadings” and evidence before the Clerk and set out in his order of 22 June 1981. There is no contention that he abused his discretion. The matter was properly before him. See In re Estate of Lowther, 271 N.C. 345, 156 S.E. 2d 693 (1967), and In re Estate of Adamee, 28 N.C. App. 229, 221 S.E. 2d 370 (1976), rev. on other grounds, 291 N.C. 386, 230 S.E. 2d 541 (1976).

The parties have noted objections and exceptions throughout the record properly preserving their right to bring those matters forward on appeal when a final appealable order is entered.

After the one issue which will resolve the right to qualify as administratrix is resolved by the jury, the Superior Court will not appoint a personal representative, but will remand the matter to the Clerk for the purpose of appointing a personal representative consistent with the decision of the Superior Court. In re Estate of Adamee, supra. '

The appeal is dismissed.

Judges Hill and BECTON concur.

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MARTIN (Harry C.), Judge.

Obviously this matter has been unnecessarily complicated and protracted. Apparently, nothing, at least at the time of the appeal, had been done with respect to the complaint filed by the sister and answer thereto filed by the wife, administratrix. In any event, this appeal is premature. Judge Thornburg, in his discretion, ordered a trial by jury of the issue of fact raised by the “pleadings” and evidence before the Clerk and set out in his order of 22 June 1981. There is no contention that he abused his discretion. The matter was properly before him. See In re Estate of Lowther, 271 N.C. 345, 156 S.E. 2d 693 (1967), and In re Estate of Adamee, 28 N.C. App. 229, 221 S.E. 2d 370 (1976), rev. on other grounds, 291 N.C. 386, 230 S.E. 2d 541 (1976).

The parties have noted objections and exceptions throughout the record properly preserving their right to bring those matters forward on appeal when a final appealable order is entered.

After the one issue which will resolve the right to qualify as administratrix is resolved by the jury, the Superior Court will not appoint a personal representative, but will remand the matter to the Clerk for the purpose of appointing a personal representative consistent with the decision of the Superior Court. In re Estate of Adamee, supra. '

The appeal is dismissed.

Judges Hill and BECTON concur.

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293 S.E.2d 835, 58 N.C. App. 568, 1982 N.C. App. LEXIS 2804, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-collins-ncctapp-1982.

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