
    In re WILL of L. D. GULLEY.
    (Filed 19 September, 1923.)
    1. Wills — Clerics of Court — Courts—Executors and Administrators— Qualification of Executors — Statutes.
    It is required of the cleric of the court to require a nonresident named as executor in a will to give a bond in double the value of the personal property of the estate (C. S., sec. 34) before he takes the oath (C. S., sec. 39), the amount of the bond to be ascertained upon examination of such person, or some other competent person under oath (C. S., sec. 33) : Held, where such person has taken possession of the personalty and has peculiar knowledge of it, refused information to the widow and all others, and to be examined by the clerk while passing upon his fitness, it is proper for the clerk to refuse to issue the letters of administration to him.
    
      
      2. Wills — Clerks of Court — Courts—Executors and' Administrators— Refusal of Letters.
    • Where the clerk of the court has refused to issue letters of administration to the one named as executor in the will, and has exercised his discretion in appointing another — in this case the widow — the letters issued to the widow are effective.
    3. Wills — Clerks of Court — Courts—Executors and Administrators— Judgments — Axipeal—Review.
    The adjudication by the clerk of the unfitness of one named in a will as executor is subject to review by the Superior Court judge, and as to matters of law, in the Supreme Court on appeal.
    4. Wills — Clerks of Court — Courts — Disqualification of Executor — Caveat — Executors and Administrators.
    Where a will has been admitted to probate, reserving by mutual consent the question of the fitness of the person therein named as executor, upon the appointment of another by the clerk, the rights of interested parties to file a caveat to the will is not impaired.
    Appeal by E. K. Gulley from Daniels, J., at chambers, 16 July, 1923.
    This was a judgment by the clerk of the Superior Court of Wayne denying the application of E. K. Gulley for letters testamentary. On appeal to Daniels, J., at chambers, the judgment was affirmed and E. K. Gulley appealed. L. D. Gulley, resident in Wayne County, died at a hospital in Miami, Florida, 19 February, 1923, leaving a will purporting to have been executed on 7 January, 1923.
    E. K. Gulley offered the said will for probate on 28 May, 1923. The widow and certain of the children as well as E. K. Gulley were represented by counsel. Counsel for both sides being present in the offices of the clerk, it was agreed that the probate of said will in common form should in no way prejudice the rights of the parties and especially the right to contest the qualification of the said E. K. Gulley as executor.
    On 30 May, 1923, the said E. K. Gulley appeared before the clerk of said court and demanded that letters testamentary be issued to him, counsel for both sides being present, and the widow of said testator and certain of her children contesting his appointment as executor.
    It also appeared that on 7 January, 1923, the date of the execution of the will, E. K. Gulley was present with the deceased at the hospital at Miami, Florida, and also on 17 January, 1923, when a check was executed in blank by the testator and filled in at the direction of said E. K. Gulley for the sum of $18,600 payable to the said E. K. Gulley, the said amount being all the funds the testator had in the bank.
    The alleged will gave very broad powers to the executor, conferring power to sell at his discretion all the valuable real estate and other property belonging to the testator upon such terms and at such price as be should see fit. Tbe said E. K. Gulley is not a resident of North Carolina, but is, and has been for many years, a resident of "Worth County, Georgia.
    At the time of the hearing before the clerk of the Superior Court on 30 May, 1923, counsel for those opposing E. K. Gulley as executor asked that he be sworn in order “that he might disclose his knowledge of the estate of the testator and of what property it consisted, and also that he might be examined for the purpose of throwing light upon his fitness or unfitness to be qualified as such executor. He declined to testify or to make any statement concerning his knowledge of the affairs of the estate, though he had in his possession since the death of the testator a satchel containing the valuable papers and securities of the testator. Upon such refusal to be examined by the clerk or to give evidence as to the value of the property of the estate, the clerk denied his application for letters as executor, especially as he had refused also to give to his mother and brothers and sisters information as to the affairs of said deceased and as to what securities and papers he had in his hands relating thereto, and had also declined to disclose to them the contents of another and prior will of the testator which he claimed to have in his possession.
    From the refusal of the clerk thereupon to appoint the said E. K. Gulley as executor, he appealed. It was agreed between the parties that thq hearing on appeal before the judge of ’ the Superior Court should be de novo. On the hearing before the judge, E. K. Gulley and the parties opposing his appointment were represented and affidavits were filed on his behalf.
    After considering such affidavits and argument by counsel for both sides, Judge Daniels affirmed the judgment rendered by the clerk of the Superior Court, and E. K. Gulley appealed.
    
      J. Faison Thompson and N. Y. Gulley for appellant.
    
    
      Geo. E. Hood, D. I!. Bland, D. G. Humphrey, Paul Edmondson, Outlaw <& Loftin, Diclcinson & Freeman, and Langston, Allen <& Taylor for appellees.
    
   Claeb:, C. J.

The application for letters testamentary was made by E. K. Gulley and counsel were heard on both sides, as was also the hearing before the judge on the appeal from the clerk. The applicant for letters of administration, E. K. Gulley, was a nonresident and was required by the statute to give bond. C. S., 34. It was necessary for him to take the oath prescribed, C. S., 39, and that the amount of the bond should be fixed by the clerk of the Superior Court at “at least double the value of all the personal property of the deceased, such value to be ascertained by tbe clerk by examination on oatb of tbe applicant or some other competent person.” 0. S., 33.

E. K. Gulley, wbo offered bimself, as executor, baying1 refused to make any statement disclosing tbe nature and tbe amount of tbe property in bis bands belonging to tbe estate, tbe clerk was justified in refusing to allow bim to qualify as executor. Under section 0. S., 31, tbe clerk is given power to revoke letters testamentary, and for tbe same causes be would certainly bave tbe right to refuse to issue letters testamentary. In this case, tbe misconduct having occurred prior to tbe issuing of tbe letters, tbe clerk was authorized to refuse to issue letters testamentary to one wbo bad refused to obey tbe legal orders of tbe clerk in taking proper steps under tbe statute for supervision of tbe administration of tbe estate and tbe action of tbe judge in approving tbe order of tbe clerk is approved.

Tbe clerk was authorized to issue letters to any suitable person in tbe place of tbe defaulting applicant. It appears that prior to tbe application of E. K. Gulley tbe widow bad qualified as administratrix and bad by injunction stopped tbe payment of an alleged draft for $18,600 given by tbe testator on bis deathbed to said E. K. Gulley. Had letters testamentary been issued to tbe executor, tbe appointment of tbe widow as administratrix should bave been set aside, but, as upon tbe aforesaid action of tbe executor tbe clerk refused to issue letters testamentary to bim, and that has been approved by tbe judge, tbe duly issued letters of administration to tbe widow remain in full force and effect.

It is in tbe province of tbe clerk of tbe Superior Court to pass upon tbe matter of qualification of an executor, subject to tbe right of tbe judge of tbe Superior Court to review bis judgment on appeal, and subject to tbe right of appeal to tbe Supreme Court as to matters of law only.

This appeal affects and approves tbe refusal of tbe letters testamentary. It will in no wise affect tbe rights of parties in interest to file caveat, if so advised, as to tbe will.

Affirmed.  