The Clerk of the Superior Court has express authority under G.S. 28-32 to revoke letters of administration which were improperly issued and to remove any administrator who has been guilty of default or misconduct in the execution of his office. (For the technical distinction between revocation and removal, see 33 C.J.S. Executors and Administrators § 84b (1942).) When, upon disputed facts, the clerk removes an administrator who appeals, under what circumstances and to what extent does the judge review the clerk’s findings of fact? The state of our decisions requires an examination of the history of the clerk’s authority as judge of probate and an analysis of the cases in order to answer the question posed by this appeal.
In the absence of a constitutional or statutory requirement providing for a jury trial, probate proceedings are heard by the court without the intervention of a jury, “since the constitutional guaranty is limited to the right of trial by jury as it existed prior to the adoption of the Constitution and the right never existed in such matters which belonged historically to the ecclesiastical jurisdiction.” 31 Am. Jur. Jury § 30 (1958). “Probate courts, having always proceeded without the intervention of a jury, are not within the application of the constitutional provisions relating to the right of jury trial. . . . [T]he right exists only as to the matters specified by statute.” 50 C.J.S. Juries § 13 (1947).
The Constitution of 1868, art. IV, § 17, gave the clerks of the Superior Court general probate jurisdiction and directed that “all issues of fact joined before them shall be transferred to the Superior Courts for trial, and appeals shall lie to the Superior Courts from their judgments in all matters of law.” This constitutional provision was incorporated as § 490 in the Code of Civil Procedure of 1868 as compiled by Barringer, Rodman, and Tourgee. With reference to § 490, in
Rowland v. Thompson,
“An issue of fact is one made by the pleadings, and no other; it does not include every question of fact which may collaterally come before the Probate Judge in the course of taking an account. Heilig v. Stokes,63 N.C. 612 . For example, if in answer *348 to a complaint against a guardian, the defendant should deny that he had ever been guardian, or should set up a release from his ward after his coming of full age; and the plaintiff should take issue on the denial, or should reply generally to the allegation of a release, issues of fact would be joined such as are intended in the act, and which, as they can only be tried by a jury, must be transferred to the Superior Court for trial.
. . .
“The final decision of the Probate Judge will generally embrace the determination both of matters of fact and of matters of law, and upon an appeal both must be reviewed. The Judge may decide on the questions of fact, as well as of law, without the aid of a jury; but it may be that some of the questions of fact are so important and difficult that he may be unwilling to do so. In such a case we think it would be within his power, as it formerly was in that of a Judge in equity, to make up issues of fact and submit them to a jury.”
The Constitutional Convention of 1875 struck out § 17 of art. IV.
In re Estate of Styers,
Although the office of probate judge was abolished, the special probate powers and duties of the clerk continued distinct and separate from their general duties as clerk of the courts to which they belong.
In re Estate of Pitchi,
“The purpose of the statute (Code of 1883, § 102) seems to be to charge such clerks with such special jurisdictional authority, in order to avoid a multiplicity of officers, and facilitate the decisions of questions of law arising'in'matters before them, *349 by a judge of the superior court, and the trial of issues of fact so arising, under the supervision of such judge, and as well to economize in respect to time and costs. . . . and sec. 116 (Code of 1883) prescribes how issues of fact raised in matters so before the clerk shall be tried in term time, and questions of law so decided by the clerk and excepted to, shall be decided by the judge in or out of term time.
“If issues of fact are joined before the clerk in such matters, these and the pleadings upon which they arise must be transferred (sec. 116,) to the superior court, that is, to another jurisdiction, in such respect to be there tried. And when the issues are so tried, the court remands the same and the pleadings or papers with the findings of the jury upon them, and the clerk will then proceed with the matter according to law. This provision has reference to issues of fact.” Brittain v. Mull, supra at 500-01. (Emphasis added.)
The provisions of § 116 of the Code of 1883 are now contained in G.S. 1-174 and G.S. 1-272.
G.S. 1-174 provides: “All issues of fact joined before the clerk shall be transferred to the superior court for trial at the next succeeding term, and in case of such transfer neither party is required to give an undertaking for costs.”
G.S. 1-272 provides:
“Appeals lie to the judge of the superior court having jurisdiction, either in term time or vacation, from judgments of the clerk of the superior court in all matters of law or legal inference. In case of such transfer or appeal neither party need give an undertaking for costs; and the clerk shall transmit, on the transfer or appeal, to the superior court, or to the judge thereof, the pleadings, or other papers, on which the issues of fact or of law arise. An appeal must be taken within ten days after the entry of the order or judgment of the clerk upon due notice in writing to be served on the appellee and a copy of which shall be filed with the clerk of the superior court. But an appeal can only be taken by a party aggrieved, who appeared and moved for, or opposed, the order or judgment appealed from, or who, being entitled to be heard thereon, had no opportunity of being heard, which fact may be shown by affidavit or other proof.”
In Brittain v. Mull, supra, it was pointed out that Code § 116 applied to the clerk’s probate jurisdiction, which is separate and distinct from his general duties as clerk, and that Code § 256 (now G.S. 1-273) applied to the transfer of cases to the civil issue docket *350 “in the same court and jurisdiction- — -not to the superior court, another jurisdiction. . . .” Id. at 503.
In authorizing the clerk to remove executors and administrators for cause, G.S. 28-32 does not specifically direct the manner in which the facts shall be ascertained, “but it plainly implies that he shall act promptly and summarily,” and, pending any litigation in that respect, he has power to make all necessary and interlocutory orders for the protection of the estate. Edwards v. Cobb, supra.
In
Murrill v. Sandlin,
“It is . . . incumbent on the Probate Judge to make the inquiry, and ascertain for himself the facts upon which the legal discretion reposed in him to remove an incompetent or unfaithful officer is to be exercised. The original authority to act is delegated to him alone, and he may require the whole issue made between the parties, or any specific question of fact, to be tried by a jury, under the supervision of the Judge of the Superior Court. When these have been determined by the jury, the Probate Judge, with such supplemental findings of fact by himself as may be necessary, proceeds to decide the question of removal, subject to the right of either party to the contest to have the cause reheard upon appeal.” Id at 55.
A proceeding to remove an executor or administrator “is neither a civil action nor a special proceeding.”
In re Estate of Galloway,
“[The purpose of a proceeding to remove an executor or administrator] is not to litigate the alleged rights and liabilities of adverse parties . . . but it is to require one who is charged by the law with special duties and- trusts, for whosoever may be interested, to show cause why ... he shall not be removed from his place or office, because of some disqualification, malfeasance, misfeasance or nonfeasance, that disqualifies or unfits him in that respect, and renders it necessary that he shall be promptly removed from it. . . .
“Ordinarily, in such matters, issues of fact do not arise — only questions of fact are presented, and the Clerk hears the matter before him summarily — he finds the facts from affidavits *351 and competent documentary evidence, and founds his orders and judgments on the same. He may, in his discretion, in some cases, direct issues of fact to be tried by a jury, and transfer them to the Superior Court to be tried, as directed by The Code, § 116, but regularly he will not. No doubt, in some cases, he ought to do so. And also, by virtue of this section, the executor or administrator, or any person interested, may appeal from the findings of fact and the judgment of the Clerk, to the Judge having jurisdiction in term time, or in vacation, and the Judge may. review the findings of fact, if need be, and decide such questions of law as may be raised, affirm, reverse or modify the order or judgment of the Clerk, and remand the matter to him for such further action as ought to be taken. From the judgment of the Judge, an appeal would lie to this Court, and errors of law only should be assigned. The-Judge in, reviewing the findings of fact, might, in his discretion, direct proper issues of fact to be tried by a jury, for his better information, and in some cases it may be he ought to do so.” Edwards v. Cobb, supra at 9-10. (Emphasis added.)
The statement that issues of fact are for the jury and questions of fact for the judge is a familiar one, but it is equivalent to defining a crime by its punishment. Whether a dispute presents an issue or a question of fact is itself a circuitous question. See McIntosh, N. C. Practice and Procedure §§ 23, 508 (1929); 31 Am. Jur. Jury § 22 (1958).
Despite the statements in Brittain v. Mull, supra, with reference to the trial of issues of fact in probate matters, it seems that in actual practice and in the contemplation of the courts (as indicated in Edwards v. Cobb, supra) issues of fact did not arise. If they did, they .were nevertheless decided by the clerk, or by the judge on appeal.
In
In re Battle,
*352 “It is well understood that our clerks of the Superior Court, on petition filed and notice duly served, in the exercise of powers conferred upon them in matters of probate, may remove an executor or administrator for good cause shown. They make such orders in the exercise of a legal discretion, which may be reviewed upon appeal. An application of this character is not regarded as being in the nature of an adversary proceeding, but a power conferred with a view of protecting the estate, and because prompt action may often be necessary to this end, a clerk is not required, on issues raised, to transfer the cause to Superior Court for a jury trial, but may and ordinarily should take definite action in the premises. The practice in such cases is very well stated in Edwards v. Cobb, 95 N. C., pp. 4-9.” Id. at 390,74 S.E. at 24 .
Mills v. McDaniel,
“Under the law as it now exists with us, these matters of probate are chiefly referred to the clerks of the Superior Court and the judgments and rulings of these officers are on appeal very generally subject to the supervision and control of the court, either in chambers or in term. If determinative issues arise on the pleadings in a procedure where the adversary rights of litigants are ordinarily presented, such issues must be ‘transferred for trial to the next succeeding term of the Superior Court’ (Revisal, secs. 78, 114, 529, and 717), and if there be issues of law or material questions of fact decided, these may be reviewed by the judge at term or in chambers on appeal properly taken, and in passing upon these questions of fact the court may act on the evidence already received, or if this is not satisfactory, it may ordinarily require the production of other evidence as an aid to the proper disposition of the questions presented. With the view of promoting right decisions very large latitude is allowed in the method of procedure and the extent of the relief which may be afforded by the appellate court, a position supported by authoritative decisions and which is in accord with the policy and express provisions of our statutes on the subject.” Id. at 114-15,76 S.E. at 551 .
*353
In
In re Meadows,
In re Martin,
“The method here pursued in hearing and determining the motion of petitioners finds approval in the following cases: In re Meadow’s Will, ante, 99; In re Johnson,182 N.C. 522 ; In re Battle,158 N.C. 388 , and cases there cited.
“The findings of fact made by the judge of the Superior Court, found as they were upon competent evidence, are conclusive on us, and we must base our judgment upon his findings, which amply sustain his order.” Id. at 475,117 S.E. at 562 ; accord, In re Estate of Loflin,224 N.C. 230 ,29 S.E. 2d 692 (petition to revoke letters because another had the prior right to administer); In re Estate of Finlayson,206 N.C. 362 ,173 S.E. 902 (domicile of testator disputed); Mills v. McDaniel,155 N.C. 249 ,71 S.E. 339 (petition to correct defective probate). See In re Bane,247 N.C. 562 ,101 S.E. 2d 369 .
It is sometimes said that, upon an appeal from an order of the clerk made in the performance of his duties as judge of probate, the jurisdiction of the judge of the Superior Court is derivative.
In re Estate of Johnson,
When the Superior Court, on appeal, hears a matter committed to the exclusive original jurisdiction of a justice of the peace,
Howard v. Insurance Co.,
Until the decision in
In re Sams,
In re Sams, supra,
was a proceeding to revoke the letters of an administrator upon allegations that he had become a nonresident and had interests antagonistic to the estate. The clerk revoked the letters. The administrator excepted to the judgment and appealed to the judge, who, after a
de novo
hearing, found facts and entered judgment “approving and affirming” the order of the clerk. The administrator then appealed to this Court, which said that his general exception to the order of the clerk carried to thé judge for review
*355
only the question whether the facts found by the clerk supported his order, and, in turn, the general exception to the judgment brought up for review the single question whether the facts found supported the judgment. Both the order and the judgment were supported by the facts found, and the judgment was affirmed. By way of dicta, the Court “noted” that the judge heard the appeal from the clerk
de novo
“rather than in his appellate capacity by review of the record as approved by numerous decisions of this Court. . . . However, there was no objection or exception to the
de novo
hearing . . . and ... no prejudicial error has been made to appear.”
Id.
at 230,
In support of its intimation that a de novo hearing on the questions of fact was not proper, the Court cited the following cases:
“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 .” Id. at 230,72 S.E. 2d at 422 .
These cases do not sustain the conclusion that, upon appeal, exceptions to the clerk’s findings of fact must be overruled if the record contains any competent evidence to support them.
In In re Simmons, supra, the clerk removed a guardian upon findings that the guardian’s interests were adverse to those of his ward and that the guardian had not maintained his ward in a suitable manner. Upon appeal, respondent demurred to the petition and moved that the court hear the cause de novo and take additional evidence or remand the cause to the clerk to hear additional evidence and to find additional facts. The judge, relying upon In re Sams, supra, ruled that his jurisdiction was derivative only and that he would hear the appeal by reviewing the record as produced by the clerk. After reviewing the record, he found that the facts supported the judgment and affirmed the clerk. Upon appeal, this Court affirmed and repeated the statement in Sams that the judge is confined to correcting errors of law and that the hearing is on the record and not de novo. This statement, in its application to the records in both Sams and Simmons, is correct because in both cases exceptions were not taken to specific findings of fact. Where no ex-exceptions are taken to specific findings of fact, a general exception to the judgment presents only the question whether the facts found *356 support the conclusions of law. 1 Strong, N. C. Index, Appeal and Error § 21 (1957). Where such exceptions are properly taken to specific findings of fact, however, it remains the rule that the judge will review those findings, and either affirm, reverse, or modify them. If he deems it advisable, he may submit the issue to a jury. Obviously, he could not follow this latter course without hearing evidence.
“The office of executor, administrator, or collector is valuable, and consequently, a person is not to be deprived of it without due process of law.” 2 Mordecai’s Law Lectures 1309 (1916). If respondent were the widow of Isham Lowther, she would have an absolute legal right to retain the letters of administration which have been issued to her absent default or misconduct in office. G.S. 28-6(1).
In re Estate of Edwards,
The judgment must be reversed and the clerk’s order reinstated. The clerk’s finding of fact that respondent is not the widow of Isham Lowther is, however, not
res judicata
in any other proceeding between the parties which respondent may be entitled to pursue.
Jones v. Palmer,
Reversed.