In Re the Estate of Galloway
50 S.E.2d 563
N.C.
1948
Check Treatment
"WiNbobne, J.

A reading of the record on this appeal leads to the conclusion that the judgment from which this appeal is taken was rendered upon facts found under a misapprehension of the law. In such case the facts found will be set aside on the theory that the evidence before the court should be considered in its true legal light. McGill v. Lumberton, 215 N. C. 752, 3 S. E. (2) 324, and cases there cited. See also S. v. Calcutt, 219 N. C. 545, 15 S. E. (2) 9; Stanley v. Hyman-Michaels Co., 222 N. C. 257, 22 S. E. (2) 570; S. v. Williams, 224 N. C. 183, 29 S. E. (2) 744; Coley v. Dalrymple, 225 N. C. 67, 33 S. E. (2) 477; Troitino v. Goodman, 225 N. C. 406, 35 S. E. (2) 277; S. v. Gause, *551 227 N. C. 26, 40 S. E. (2) 463; Whitted v. Palmer-Bee Co., 228 N. C. 447, 46 S. E. (2) 109.

The statute G.S. 28-32 pertaining to revocation of letters of administration provides that “if, after any letters have been issued, it appears to the clerk, or if complaint is made to him on affidavit . . . that any person to whom they were issued . . . has been guilty of default or misconduct in the due execution of his office . . . the clerk shall issue an order requiring such person to show cause why the letters should not he revoked”; and “on the return of such order, duly executed, if the objections are found valid the letters issued to such persons must he revoked and superseded, and his authority shall thereupon cease.”

“This proceeding,” as stated in Edwards v. Cobb, 95 N. C. 4, opinion by Merrimon, J., “is neither a civil action nor a special proceeding under the code of civil procedure. Its purpose is not to litigate the alleged rights and liabilities of adverse parties, settle the same, and give judgment against one party in favor of another, but it is to require one who is charged by the law with special duties and trusts, for whomsoever 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 he promptly removed from it.”

That is, the question before the clerk is whether the administrator “has been guilty of default or misconduct in the due execution of his office.” G.S. 28-32. In passing upon such question, the clerk exercises a legal discretion which may be reviewed on appeal. See Edwards v. Cobb, supra; In re Battle, 158 N. C. 388, 74 S. E. 23; In re Estate of Wright and Wright v. Ball, 200 N. C. 620, 158 S. E. 192. In re Estate of Styers, 202 N. C. 715, 164 S. E. 123; Jones v. Palmer, 215 N. C. 696, 2 S. E. (2) 850; Edwards v. McLawhorn, 218 N. C. 543, 11 S. E. (2d) 562.

In Jones v. Palmer, supra, it is stated: “The clerk is not compelled to remove an administrator for failing promptly to file an inventory when in his judgment the estate has received no damage; . . . nor for failure to file account . . . nor for delay in winding up an administration. Instead of removal the performance of all these duties may be enforced by appropriate proceeding. Atkinson v. Ricks, 140 N. C. 418, 53 S. E. 230; Barnes v. Brown, 79 N. C. 401. But he may remove an . . . administrator for such failure and must do so when he finds the omission of duty is sufficiently grave to materially injure or endanger the estate, or if compliance with the orders of the court in the supervision and correction of the administration are not properly obeyed.”

While personal property of a person who dies intestate passes directly to his administrator, his real property descends directly to his heirs at law, subject to be divested only if it becomes necessary to sell land to *552 make assets with which to pay debts. Parker v. Porter, 208 N. C. 31, 179 S. E. 28.

All rents accruing from rental or use and occupancy of real property after the death of the intestate become the property of the heirs to whom the real property descends. See Trust Co. v. Frazelle, 226 N. C. 724, 40 S. E. (2) 367. Indeed, it may he that the benefits paid under the AAA are matters of concern only to the heirs at law.

The only right that the administration can have in the real property of his intestate is the right to subject it to the payment of the debts and costs of administration when the personal property is insufficient for that purpose. Parker v. Porter, supra.

Applying these principles to the case in hand, it would seem that the duties, obligations and liabilities of the administrators may have been confused with their rights and liabilities as heirs at law.

Hence in the light of this opinion the case is remanded to the end that the matter be re-heard and the facts found in their true legal light.

Error and remanded.