In Re Covington's Will

114 S.E.2d 261 (1960)

252 N.C. 551

In the Matter of the WILL of Leake S. COVINGTON, Deceased.

No. 457.

Supreme Court of North Carolina.

May 18, 1960.

*263 Webb & Lee, Bynum & Bynum, Rockingham, Robinson, Jones & Hewson, Charlotte, for appellant.

Leath & Blount, Rockingham, and Blakeney, Alexander & Machen, Charlotte, for appellees.

RODMAN, Justice.

Before one can qualify as an executor he must take an oath (G.S. § 28-40) stating his belief that the writing he is to execute is the last will and testament of deceased and that he will well and faithfully execute the office agreeable to the trust and confidence imposed in him. G.S. § 11-11.

Mindful of his oath, what is the duty of an executor who, during the course of his administration, discovers a writing which convinces him that the instrument under which he acts is not in fact the last will and testament of deceased? The answer is, we think, obvious. It is the duty of the executor to communicate the facts to the court which appointed him, and if the reason for his changed belief is a writing of later date than the one under which he acts, and purports to to be a will, that writing should be delivered to the clerk, who is invested with probate jurisdiction. Brogden, J., said in Wells v. Odum, 207 N.C. 226, 176 S.E. 563, 564: "It is a crime in this state to fraudulently suppress or conceal a will. C.S., § 4256. Obviously, the basis for making such suppression a crime is the fact that it is the policy of the law that wills should be probated, and that the rights of the parties in cases of dispute should be openly arrived at, according to the orderly processes of law. Moreover, C.S.Supp.1924, § 4139 and C.S., § 4141, by implication, at least, require the probate of a will. Furthermore, C.S., § 4140, provides that if the executor fail to prove the will according to law, any devisee or legatee named in the will `or any other person interested in the estate, may make such application, upon ten days notice thereof to the executor.'"

Covington acted properly when he delivered the writing purporting to be a will, dated 8 September 1953, to the clerk. This writing not only designated him as executor, but it named him as the sole beneficiary. He had a duty as the named executor to offer it for probate, G.S. § 31-12, Wells v. Odum, supra, and a right as the beneficiary to insist that it be probated, G.S. § 31-13. The clerk, in his order revoking the letters issued to Covington, recognized that right to offer the writing for probate

An executor acts in a fiduciary ca pacity. McMichael v. Proctor, 243 N.C. 479, 91 S.E.2d 231. He is classified by statute with "guardians, trustees, and other fiduciaries." G.S. § 36-9. Both by law and the words of his oath he must faithfully execute the trust imposed in him. He must be impartial. He cannot use his office for his personal benefit. When conditions arise which will prevent him from faithfully and impartially executing the duties which he has assumed, he should not be expected or permitted to continue to serve.

Where a conflict exists between the obligations which one has assumed as executor and his individual rights, he may tender his resignation to the court. G.S. § 36-10. If and when the resignation is tendered, the court should proceed as provided *264 in G.S. § 36-11, but the fact that a fiduciary appointed by a court does not tender his resignation does not deprive the court which appoints him of authority to act and to revoke the letters testamentary when cause for removal exists. Taylor v. Biddle, 71 N.C. 1; Edwards v. Cobb, 95 N.C. 4; Tulburt v. Hollar, 102 N.C. 406, 9 S.E. 430; In re Battle's Estate, 158 N.C. 388, 74 S.E. 23; In re Johnson's Will, 182 N.C. 522, 109 S.E. 373; In re Meadows' Will, 185 N.C. 99, 116 S.E. 257; In re Estate of Suskin, 214 N.C. 219, 198 S.E. 661; In re Estate of Johnson, 232 N.C. 59, 59 S.E.2d 223.

Our statute, G.S. § 28-32, recognizing the power of the court and prescribing the procedure by which it may be exercised, provides: "If, after any letters have been issued, it appears to the clerk * * * that any person to whom they were issued is legally incompetent to have such letters, or that such person has been guilty of default or misconduct in due execution of his office * * * the clerk shall issue an order requiring such person to show cause why the letters should not be revoked. On the return of such order, duly executed * * if the objections are found valid, the letters issued to such person must be revoked and superseded, and his authority shall thereupon cease."

We have not heretofore been called upon to define the words "legally incompetent" and the other words authorizing removal as used in the statute. Of course any of the disqualifications enumerated in G.S. § 28-8 would justify removal, In re Sams' Estate, 236 N.C. 228, 72 S.E.2d 421; but we think the language used is entitled to a broader meaning and should be interpreted as meaning not fit, qualified, or prepared to impartially discharge the duties of the office in the manner directed by the oath taken.

The Supreme Court of Nebraska was called upon to define the words "legally competent," used in its statute with respect to qualification of executors. It said: "The lawmakers did not define the term `legally competent,' but left the interpretation thereof to the courts. In a judicial proceeding an executor of a probated will is not only an officer of the court but is a trustee for the persons entitled to share decedent's estate. The legislature recognized the relation of trustee and beneficiary by providing that letters testamentary shall be issued to the person named executor in the will, `if he is legally competent, and he shall accept the trust and give bond as required by law.' In the sense used by the lawmakers, the term `legally competent' means fit or qualified to act as officer of the court and as trustee in administering upon the estate of testator according to judicial standards essential to the proper course of justice in the judicial department of government * * *. A statute directing the probate court to appoint an executor whose official and representative duties would require him to prosecute on behalf of adversary litigants a suit which he would defend as an individual would encroach on a judicial prerogativethe power of the court to appoint a competent officer. That intent is not expressed or implied. A person who would be placed by appointment as executor in the anomalous position indicated would not be `legally competent' within the meaning of the statute." In re Blochowitz's Estate, 124 Neb. 110, 245 N.W. 440, 441.

The Court of Appeals of Kentucky said: "A duty to defend a will if possible rests on an executor. (Citation) If a personal representative cannot in good faith and conscience perform his trust in a fair and unbiased manner, he ought to resign voluntarily. If he does not, then he should be removed by the court, under the provisions of KRS 395.160, because he is `incapable to discharge the trust.'" Karsner's Ex'r v. Monterey Christian Church, 304 Ky. 269, 200 S.W.2d 474, 475.

The Supreme Court of Vermont said: "* * * an executor or administrator has *265 been deemed unsuitable when he has any conflicting personal interest which prevents him from doing his official duty. (Citations) Without deciding that the phrase `unsuitable to discharge the trust' may not have a broader meaning, we hold that an executor or administrator is unsuitable when he has such conflicting interest." In re McGowan's Estate, 118 Vt. 170, 102 A.2d 856, 857.

Previous decisions of this Court upholding decrees revoking the authority of an executor or fiduciary to act because of conflicting interests are, we think, in support of the order of revocation made by the clerk. In re Sams' Estate, supra; In re Battle's Estate, supra; In re Will of Gulley, 186 N.C. 78, 118 S.E. 839; In re Dixon, 156 N.C. 26, 72 S.E. 71; Ury v. Brown, 129 N.C. 270, 40 S.E. 4; Simpson v. Jones, 82 N.C. 323; 21 A.J. 461. Such a conflict has been adjudged sufficient to require vacation of a judgment. White v. Osborne, 251 N.C. 56, 110 S.E.2d 449.

The statutory provision with respect to notice is for the benefit and protection of the person who may be removed. He may, of course, waive this provision by himself calling to the court's attention the matters which justify his removal.

When Covington filed for probate the writing dated 8 September 1953 which by express language revoked the writing under which he was acting, he disqualified himself from continuing to serve as executor, and the clerk properly directed his removal. The court was in error in holding as a matter of law under the factual situation here presented that Covington could not be removed, and his authority as executor of the paper which he had repudiated could only be terminated by his resignation.

Reversed.