In Re Sams'estate

Annotate this Case

72 S.E.2d 421 (1952)

236 N.C. 228

In re SAMS' ESTATE.

No. 114.

Supreme Court of North Carolina.

September 24, 1952.

*422 Clyde Roberts, Marshall, and Guy Weaver, Asheville, for Lee Sams, Administrator, appellant.

J. M. Baley, Jr., Marshall, for appellees.

JOHNSON, Justice.

The exceptive assignment to the findings of fact is broadside. Weaver v. Morgan, 232 N.C. 642, 61 S.E.2d 916; Thompson v. Thompson, 235 N.C. 416, 70 S.E.2d 495. It is insufficient to challenge the sufficiency of the evidence to support the findings or any one of them. Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351; Wilson v. Robinson, 224 N.C. 851, 32 S.E.2d 601; McIntosh, N. C. P. & P., Sec. 517. In this state of the record, the presumption is there was sufficient evidence to support the findings. Vestal v. Moseley Vending Machine Exchange, 219 N.C. 468, 14 S.E.2d 427.

The general exception to the order of the Clerk carried up for review before the Judge of the Superior Court only the question whether the facts found by the Clerk support the order. And in turn the general exception to the judgment signed by the Judge brings here for review the single question whether the facts found support the judgment. Wilson v. Robinson, supra; Thompson v. Thompson, supra. It is manifest that both the order of the Clerk and the judgment of the Judge are supported by the facts found. G.S. ยงยง 28-32, 28-8 subd. 2; 21 Am.Jur., Executors and Administrators, Sec. 158; In re Battle's Estate, 158 N.C. 388, 74 S.E. 23.

It is noted that the appeal from the Clerk was heard de novo by the Presiding Judge, rather than in his appellate capacity by review of the record as approved by numerous decisions of this Court: In re Estate of Johnson, 232 N.C. 59, 64, 59 S.E.2d 223; In re Will of Hine, 228 N.C. 405, 411, 45 S.E.2d 526; In re Estate of Styers, 202 N.C. 715, 164 S.E. 123; In re Estate of Wright, 200 N.C. 620, 158 S.E. 192; In re Will of Gulley, 186 N.C. 78, 118 S.E. 839; Edwards v. Cobb, 95 N.C. 4. See also: McIntosh, N. C. P. & P., Sections 65, 72, 696 and 701; Rowland v. Thompson, 64 N.C. 714; In re Estate of Edwards, 234 N.C. 202, 66 S.E.2d 675; Mills v. McDaniel, 161 N.C. 112, 76 S.E. 551. However, there was no objection or exception to the de novo hearing in the Superior Court, and upon the record as presented no prejudicial error has been made to appear. Therefore the judgment below affirming and approving the former order of the Clerk is

Affirmed.