Appeal by plaintiffs and defendant from Lupton, Judge. Judgment entered 30 December 1980 in Superior Court, Forsyth County. Heard in the Court of Appeals 22 October 1981.
Whichard, Judge. Judges Vaughn and Hill concur.
John Junior Lucas died interstate on 17 May 1980. On 27 May 1980 defendant Ola Mae Jarrett, pursuant to renunciation by decedent's mother of her alleged right to administer and to her request that defendant be appointed, applied for letters of administration from the clerk of superior court. In her application defendant listed decedent's mother as the sole heir and distributee and stated that no children were born to decedent. The clerk authorized issuance of letters of administration to defendant on 27 May 1980.
On 6 June 1980 plaintiffs initiated a G.S. 28A-9-1 proceeding before the clerk to revoke the letters of administration issued to defendant and to establish their right, pursuant to G.S. 29-19, to take from the estate as illegitimate children of decedent. Plaintiffs alleged the following in a verified complaint: They were born out of wedlock to their mother, Florence Virginia Conrad, and to their natural father, decedent. Decedent was finally adjudged to be their father in 1959 and 1962 non-support proceedings under
G.S. 49-1 through 49-9. G.S. 29-15 entitled them, rather than decedent's mother, to take from decedent's estate. They, as decedent's heirs, had a right to administer the estate superior to that of decedent's mother or defendant; and they had not renounced that right. Defendant obtained her letters through false representation or mistake regarding the existence of potential heirs and distributees other than decedent's mother.
The clerk issued an order that defendant appear to show cause why she should not be removed as administratrix. At the hearing, attended by plaintiffs and defendant, Florence Virginia Conrad testified for plaintiffs that she had lived out of wedlock with decedent from 1956 until 1980, and had borne nine children by decedent, of whom three were the plaintiffs. She had sworn criminal warrants against decedent for nonsupport of plaintiffs, and the court had adjudged decedent to be their father. Defendant testified that she was decedent's sister and she knew the plaintiffs as the children of decedent.
The clerk ordered defendant removed as administratrix, based upon findings of fact that plaintiffs were the natural children of decedent entitled to take by, through, and from him pursuant to G.S. 29-19(b)(1), that plaintiffs were qualified and entitled to administer the estate (G.S. 28A-4-1(b)(3)), and that letters of administration had been issued to defendant due to a false representation or mistake. Defendant appealed to the superior court, but made no specific exceptions to the findings of fact or conclusions. Defendant then filed a motion for summary judgment in which she raised for the first time issues concerning the sufficiency of plaintiffs' notice of their claim to satisfy G.S. 29-19(b), and the constitutionality of 29-19(b)(1) on its face and as applied to decedent's estate. Plaintiffs filed a response, together with affidavits of Tanya R. Conrad, Millicent A. Conrad, and Florence Virginia Conrad. They also filed a second notice of the basis of their claim of entitlement to inherit from decedent.
The superior court concluded that plaintiffs' verified complaint and second notice each satisfied G.S. 29-19(b) and therefore plaintiffs, as the natural children of decedent, who had been adjudged their father, were entitled to take by, through, and from his estate. It declared G.S. 29-19(b)(1) to be constitutional both on its face and as applied. Finally, it found insufficient competent
evidence to support the finding that issuance of letters to defendant resulted from false representation or mistake of the defendant. It therefore reversed the clerk's order of removal and adjudged that defendant was properly serving as administratrix.
Plaintiffs and defendant appeal.
Defendant presents two questions: (1) whether the court erred in declaring G.S. 29-19(b) constitutional, both on its face and as applied to decedent's estate; and (2) whether the court erred in declaring that plaintiffs were ...