IN THE MATTER OF: THE ESTATE OF CLARENCE MAYNARD JOHNSON
in the Court of Appeals 31 January 2019.
by petitioner from orders entered 9 March 2018 by Judge James
M. Webb in Anson County No. 14 E 161 Superior Court.
McCraw Law Firm, PLLC, by Jeffrey M. McCraw, for
Harrington Law Firm, by Larry E. Harrington, for
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.
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.
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.
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
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.
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
September 2017, Petitioner filed a petition for revocation of
letters testamentary issued to Respondent. Petitioner
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).
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.
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
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.
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
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.
upon these findings, the clerk of court concluded, in
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.
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
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 ...