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In re Estate of Johnson

Court of Appeals of North Carolina

February 19, 2019


          Heard in the Court of Appeals 31 January 2019.

          Appeal by petitioner from orders entered 9 March 2018 by Judge James M. Webb in Anson County No. 14 E 161 Superior Court.

          The McCraw Law Firm, PLLC, by Jeffrey M. McCraw, for petitioner-appellant.

          Harrington Law Firm, by Larry E. Harrington, for respondent-appellee.

          TYSON, JUDGE.

         Stacia Ward Johnson ("Petitioner") appeals two orders of the superior court issued upon review of orders from the clerk of superior court. We vacate both of the superior court's orders and remand.

         I. Background

         Clarence Maynard Johnson ("Decedent") and Petitioner were married on 14 August 1999. Decedent died testate on 28 September 2014. Decedent's last will and testament dated 5 April 2013 was submitted for probate on 18 November 2014. Decedent's will named one of Decedent's two sons from a prior marriage, Edward Michael Johnson ("Respondent"), as his executor. In his will, Decedent left a residence at 512 North Pine Lane in Wadesboro and one-half of all of his other real property and personal property to Petitioner. The remaining one-half undivided interest was devised to Respondent and Mark Johnson, Decedent's other son by a prior marriage.

         Petitioner submitted an AOC-E-100 form for a year's allowance of $30, 000.00 as a surviving spouse pursuant to N.C. Gen. Stat. § 30-15 on 14 January 2016. After applying N.C. Gen. Stat. § 30-31, the Anson County Clerk of Superior Court entered an order on 20 January 2016 ("the January 2016 Order") finding Petitioner was "entitled to a year's allowance in the amount of $13, 349.50 . . . to be credited against her distributive share." The January 2016 Order also specified that two motor vehicles totaling $3, 050.00 in value and an insurance check for damage to another motor vehicle in the amount of $4, 097.06 be assigned to Petitioner in partial payment of the year's allowance. After assigning the vehicles and the check, the January 2016 Order specified that a $6, 202.44 balance on the $13, 349.50 assignment was to be paid from the estate's assets.

         Also on 20 January 2016, the Assistant Anson County Clerk of Superior Court signed the section entitled "ASSIGNMENT OF YEAR'S ALLOWANCE" on the AOC- E-100 form submitted by Petitioner. The "ASSIGNMENT OF YEAR'S ALLOWANCE" section of the form contains pre-printed language, which states:

I have examined the above application and have determined the money and other personal property of the decedent. I find that the allegations in the application are true and that each person(s) named in the application is entitled to the allowance requested.
I ASSIGN to the applicant the funds or other items of the personal property of the decedent listed below, which I have valued as indicated. This property is assigned free and clear of any lien by judgment or execution against the decedent and is to be paid by the applicant to the person(s) entitled. I assess as a DEFICIENCY the amount, if any, shown below, which is to be paid or delivered to the proper person when any additional personal assets of the decedent are discovered.

         The form listed the $13, 349.50 worth of Decedent's personal property assigned to Petitioner to pay her year's allowance, and noted a deficiency of $16, 650.50, the difference between the $30, 000.00 year's allowance provided under N.C. Gen. Stat. § 30-15 (2014) and the $13, 349.50 worth of personal property assigned to Petitioner.

         On 11 September 2017, Petitioner filed a petition for revocation of letters testamentary issued to Respondent. Petitioner alleged:

a.[Respondent] has failed to properly handle, manage, and account for estate assets in accordance with the North Carolina General Statutes;
b. [Respondent] has failed to file timely and accurate periodic accountings with the Clerk;
c. The estate has been open for three (3) years and accurate and complete final distributions and a final accounting have yet to be proffered; and
d. These and potentially other failures and circumstances appear to rise to a violation of the fiduciary duty of the [Respondent's] office under NCGS 28A-9-1(3).

         A hearing was held on Petitioner's petition on 8 November 2017 before the clerk of superior court. Petitioner asserted Respondent had committed multiple breaches of his fiduciary duties as the estate executor, including failing to satisfy the deficiency on Petitioner's year's allowance before paying lower priority claims on Decedent's estate.

         Petitioner also asserted, in part, that: (1) Respondent had failed to include several assets in the estate's inventory, including the contents of two safes owned by Decedent that contained firearms, U.S. currency, and a coin collection; (2) Respondent had improperly included non-probate real estate transactions within his estate accounting, including the sale of timber from Decedent's real property, real estate rents, and real estate expenses; (3) Respondent had calculated his commissions as executor based upon inflated receipts and disbursements; and (4) Respondent had failed to provide vouchers to support disbursements made from the estate.

         At the conclusion of the hearing, the clerk of superior court orally ruled that there was a deficiency of $16, 650.50 in Petitioner's year's allowance, and ordered Respondent to issue Petitioner a check for the deficiency. The clerk also ordered an appraisal of Decedent's coin collection and calendared a hearing for 29 November 2017 on the results of the appraisal. The clerk deferred ruling on the removal of Respondent as the executor. Respondent gave oral notice of appeal of the clerk's order on the deficiency payment.

         After the hearing, Petitioner filed a new petition for the revocation of Respondent's letters testamentary on 17 November 2017. In the new petition, Petitioner reasserted the arguments she had made for removal of Respondent as the estate executor at the 8 November hearing and in her previous petition.

         On 20 November 2017, the clerk of court issued a written order ("the Deficiency Order") which contained findings of fact and conclusions of law. The Deficiency Order required that Petitioner be paid the $16, 650.50 deficiency for the year's allowance. The order contained the following relevant findings of fact:

6.That on January 20th, 2016 the Anson County Clerk of Superior Court issued an order Assigning Spouse Year's Allowance of $13, 349.50 . . . .
7.That the aforementioned remittance in paragraph #6 of $13, 349.50, toward an Assignment of Year's Allowance, did and does cause a remaining deficiency of $16, 650.50 to the Spouse's Year's Allowance, per N.C. G.S. 30-15.

         Based upon these findings, the clerk of court concluded, in relevant part:

8. That on January 20th, 2016 the court approved and ordered a Year's Allowance to be assigned to [Petitioner] in the amount of $13, 349.50, leaving a deficiency of $16, 650.50, per N.C. G.S. 30-15.

         On 19 December 2017, the clerk of court issued an order ("the Revocation Order") denying Petitioner's petition for revocation of letters testamentary granted to Respondent. The Revocation Order contained the following relevant findings of fact:

8. The Court has examined the filed reports of the Executor. While sometimes tardy, the Court can find no breach of fiduciary duty, no evidence of bad faith and no misconduct that would justify ...

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