In re the Estate of Collins

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

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.