# In re: Est. of Johnson

> Court of Appeals of North Carolina · February 19, 2019 · 264 N.C. App. 27

URL: https://www.frixlaw.com/law-library/cases/4368845

## Case

- **Full name:** In the MATTER OF: The ESTATE OF Clarence Maynard JOHNSON
- **Court:** Court of Appeals of North Carolina
- **Decided:** February 19, 2019
- **Citations:** 264 N.C. App. 27; 824 S.E.2d 857
- **Precedential status:** Published
- **Opinion:** Opinion by Tyson
- **Judges:** Tyson
- **Cited by:** 11 later opinions in the Frix Law Library

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## Opinion text

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA18-778

Filed: 19 February 2019

Anson County, No. 14 E 161

IN THE MATTER OF: THE ESTATE OF CLARENCE MAYNARD JOHNSON

Appeal by petitioner from orders entered 9 March 2018 by Judge James M.

Webb in Anson County Superior Court. Heard in the Court of Appeals 31 January

2019.

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
IN RE JOHNSON

Opinion of the Court

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

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IN RE JOHNSON

Opinion of the Court

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).

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IN RE JOHNSON

Opinion of the Court

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.

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IN RE JOHNSON

Opinion of the Court

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:

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IN RE JOHNSON

Opinion of the Court

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 removal or revocation of
letters testamentary.

9. The Court finds no evidence that [Respondent] has acted
in bad faith in carrying out his fiduciary duties as
Executor.

10. The Court finds no evidence that [Respondent] is guilty
of misconduct in the execution of his office.

11. The Court finds no evidence that [Respondent] has a
private interest that might hinder or be adverse to a proper
administration of the estate.

The Revocation Order concluded, in part:

2. [Respondent] has violated no fiduciary duty through
default or misconduct in the execution of his office.

3. [Respondent] has no private interest, whether direct or
indirect, that might tend to hinder or be adverse to a fair
and proper administration of the estate.

Petitioner filed written notice of appeal of the Revocation Order to the superior

court, “pursuant to N.C.G.S. §§ 28A-9-4 and 28A-2-9(b) and 1-301.2 or alternatively

1-301.3 . . . .”

The superior court conducted a hearing on Petitioner and Respondent’s

appeals on 12 February 2018. The superior court issued two orders on 6 March 2018.

One order denied Petitioner’s petition for revocation of letters testamentary granted

to Respondent. The other order allowed Respondent’s appeal of the Deficiency Order

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IN RE JOHNSON

Opinion of the Court

and declared the Deficiency Order null and void. The superior court ruled that the

clerk of court’s 20 January 2016 order, which did not specify a deficiency owed to

Petitioner, controlled over the Deficiency Order.

Petitioner filed timely notice of appeal of the superior court’s two orders.

II Jurisdiction

Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7A-27(b) (2017).

III. Issues

Petitioner argues the superior court applied the incorrect standards of review

to the Revocation Order and the Deficiency Order, which warrants reversal and

remand of both orders to the superior court. In the alternative, Petitioner argues the

superior court erred in denying her petition for revocation of letters testamentary and

in ruling the clerk of court’s deficiency order was null and void.

IV. Standard of Review

“On appeal to the Superior Court of an order of the Clerk in matters of probate,

the trial court judge sits as an appellate court.” In re Estate of Pate, 119 N.C. App.

400, 402-03, 459 S.E.2d 1, 2-3 (1995) (quotations and citations omitted). “The

standard of review in this Court is the same as in the Superior Court.” Id. at 403, 459

S.E.2d at 3. “Errors of law are reviewed de novo.” Overton v. Camden Cty., 155 N.C.

App. 391, 393, 574 S.E.2d 157, 160 (2002) (citation omitted).

We address Petitioner’s arguments that the superior court applied the wrong

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Opinion of the Court

standards of review to each of the clerk of court’s orders.

V. Analysis

A. The Revocation Order

Petitioner argues the superior court failed to apply de novo review to the clerk

of court’s Revocation Order, which denied Petitioner’s petition to revoke letters

testamentary granted to Respondent as executor of Decedent’s estate.

In her notice of appeal to the superior court, Petitioner appealed “pursuant to

N.C.G.S. §§ 28A-9-4 and 28A-2-9(b) and 1-301.2 or alternatively 1-301.3 . . . .”

N.C. Gen. Stat. § 28A-9-4 (2017) provides an “interested person” a right to

appeal a clerk of court’s order granting or denying revocation of letters testamentary

to the superior court. The statute states:

Any interested person may appeal from the order of the
clerk of superior court granting or denying revocation as a
special proceeding pursuant to G.S. 28A-2-9(b). The clerk
of superior court may issue a stay of an order revoking the
letters upon the appellant posting an appropriate bond set
by the clerk until the cause is heard and determined upon
appeal.

N.C. Gen. Stat. § 28A-9-4 (emphasis supplied). N.C. Gen. Stat. § 28A-2-9(b) (2017)

specifically provides: “Appeals in special proceedings shall be as provided in G.S. 1-

301.2.” (emphasis supplied).

N.C. Gen. Stat. § 1-301.2(e) (2017) in turn states, in relevant part:

(e) Appeal of Clerk’s Decisions.-- . . . [A] party aggrieved by
an order or judgment of a clerk that finally disposed of a

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IN RE JOHNSON

Opinion of the Court

special proceeding, may, within 10 days of entry of the
order or judgment, appeal to the appropriate court for a
hearing de novo. . . . (Emphasis supplied).

Although Petitioner appealed, in the alternative, under N.C. Gen. Stat. § 1-

301.3, nothing indicates that section provides an alternative method to appeal

decisions or orders of a clerk of court granting or denying letters testamentary. N.C.

Gen. Stat. § 1-301.3 generally governs appeals of trust and estate matters decided by

a clerk of court; however, this statute expressly states:

(a) Applicability. -- This section applies to matters arising
in the administration of trusts and of estates of decedents,
incompetents, and minors. G.S. 1-301.2 applies in the
conduct of a special proceeding when a special proceeding
is required in a matter relating to the administration of an
estate.

N.C. Gen. Stat. § 1-301.3(a) (2017) (emphasis supplied). Under N.C. Gen. Stat. §§

28A-9-4, 28A-2-9(b) and 1-301.2, an appeal from an order of the clerk of superior court

granting or denying a petition to revoke letters testamentary mandates a de novo

hearing. N.C. Gen. Stat. § 1-301.2(e) provides the appropriate scope of review for

Petitioner’s appeal of the Revocation Order to the superior court, and not N.C. Gen.

Stat. § 1-301.3. See id.

Respondent cites this Court’s opinion in In re Estate of Longest, 74 N.C. App.

386, 328 S.E.2d 804 (1985), to contend the superior court was not required to conduct

a de novo hearing and that the court applied the correct standard of review. Longest

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Opinion of the Court

involved an appeal of a superior court order affirming a clerk of court’s order to revoke

letters testamentary. Longest, 74 N.C. App. at 388-89, 328 S.E.2d at 806.

This Court stated, in relevant part: “Civil actions and special proceedings, . . .

which originate before the Clerk of Court are heard de novo when appealed to the

Superior Court. However, a proceeding to remove an executor is not a civil action or

a special proceeding.” Id. at 389, 328 S.E.2d at 807 (citation omitted). The Court also

stated: “[I]n an appeal from an order of the Clerk in a probate matter, the Superior

Court is not required to conduct a de novo hearing.” Id. at 390, 328 S.E.2d at 807.

Longest was decided prior to the General Assembly’s amendment of N.C. Gen.

Stat. § 28A-9-4 in 2011 to provide for “a hearing de novo” in the nature of a special

proceeding. The General Assembly enacted N.C. Gen. Stat. § 28A-2-9(b) to make N.C.

Gen. Stat. § 1-301.2, which provides for a de novo hearing, applicable to appeals of

orders granting or denying letters testamentary. Session Laws 2011-344, § 4, eff. Jan.

1, 2012. This Court’s opinion in Longest no longer controls the standard or scope of

review applied to appeals to the superior court of a clerk of court’s order granting or

denying letters testamentary. See id. Respondent’s position is contradicted by the

plain language and legislative history of the statutes. The superior court was not

required to review the Revocation Order de novo, but to conduct “a hearing de novo”

pursuant to N.C. Gen. Stat. §§ 28A-9-4, 28A-2-9(b), and 1-301.2.

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IN RE JOHNSON

Opinion of the Court

The superior court’s order denying Petitioner’s petition to revoke Respondent’s

letters testamentary, states, in relevant part:

[A]fter review of the court file, evidence presented,
petitioner’s post hearing brief, applicable law, and
arguments of counsel, the Court finds as follows:

1. That the findings of fact are supported by the evidence;

2. That the conclusions of law are supported by the findings
of facts; and

3. That the order is consistent with the conclusions of law.

The language of the superior court’s order does not indicate it conducted “a

hearing de novo” as is required by N.C. Gen. Stat. § 1-301.2. Instead, the language

of the trial court’s order tracks the language of N.C. Gen. Stat. § 1-301.3(d), which

states:

(d) Duty of Judge on Appeal. -- Upon appeal, the judge of
the superior court shall review the order or judgment of the
clerk for the purpose of determining only the following:

(1) Whether the findings of fact are supported by the
evidence.

(2) Whether the conclusions of law are supported by the
findings of facts.

(3) Whether the order or judgment is consistent with the
conclusions of law and applicable law. (Emphasis
supplied).

The Supreme Court of North Carolina has recognized that “When the order or

judgment appealed from was entered under a misapprehension of the applicable law,

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Opinion of the Court

the judgment, including the findings of fact and conclusions of law on which the

judgment was based, will be vacated and the case remanded for further proceedings.”

Concerned Citizens v. Holden Enterprises, 329 N.C. 37, 54-55, 404 S.E.2d 677, 688

(1991) (1991) (citation omitted); see Thompson v. Town of White Lake, __ N.C. App.

__, __, 797 S.E.2d 346, 353 (2017) (“Ordinarily when a superior court applies the

wrong standard of review . . . this Court vacates the superior court judgment and

remands for proper application of the correct standard.”).

Based upon the superior court’s apparent misapprehension of the scope of its

review, the appeal of the clerk of court’s Revocation Order must be remanded to the

superior court for “a hearing de novo” in accordance with N.C. Gen. Stat. §§ 28A-9-4,

28A-2-9(b), and 1-301.2.

“The word ‘de novo’ means fresh or anew; for a second time; and a de novo trial

in appellate court is a trial had as if no action whatever had been instituted in the

court below.” In re Hayes, 261 N.C. 616, 622, 135 S.E.2d 645, 649 (1964) (citation and

quotation marks omitted). “A court empowered to hear a case de novo is vested with

full power to determine the issues and rights of all parties involved, and to try the

case as if the suit had been filed originally in that court.” Caswell Cty. v. Hanks, 120

N.C. App. 489, 491, 462 S.E.2d 841, 843 (1995) (citations and internal quotation

marks omitted).

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IN RE JOHNSON

Opinion of the Court

In Hanks, this Court analyzed the provision of N.C. Gen. Stat. § 67-4.1(c)

providing for an appeal to superior court of a county’s animal control appellate board’s

determination that a dog is a “potentially dangerous dog.” Id. at 490, 462 S.E.2d at

842. N.C. Gen. Stat. § 67-4.1(c) states, in relevant part: “The appeal shall be heard

de novo before a superior court judge sitting in the county in which the appellate

Board whose ruling is being appealed is located.”

In analyzing N.C. Gen. Stat. § 67-4.1(c), this Court stated: “The language of

the statute in this case is mandatory, providing that the appeal to superior court

‘shall be heard de novo[.]’” Hanks, 120 N.C. App. at 491, 462 S.E.2d at 843 (citing

N.C. Gen. Stat. § 67-4.1(c)).

This Court held: “The plain language of N.C. Gen. Stat. § 67-4.1(c) . . . requires

that the superior court must hear the case on its merits from beginning to end as if

no hearing had been held by the Board and without any presumption in favor of the

Board’s decision.” Id.

As with N.C. Gen. Stat. § 67-4.1(c), N.C. Gen. Stat. § 1-301.2(e) expressly

provides for “a hearing de novo” on appeal to the superior court, and not just de novo

or whole record review. The order appealed from is vacated and remanded. Upon

remand, the superior court is required to conduct “a hearing de novo” of Petitioner’s

petition for revocation of letters testamentary, “as if no hearing had been held by the

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Opinion of the Court

[clerk] and without any presumption in favor of the [clerk’s] decision.” Hanks, 120

N.C. App. at 491, 462 S.E.2d at 843.

B. The Deficiency Order

Petitioner also argues the superior court applied the wrong standard of review

to Respondent’s appeal of the Deficiency Order. We agree.

Unlike petitions for revocation of letters testamentary under N.C. Gen. Stat. §

28A-9-4, no statute expressly addresses appeals of a clerk of court’s order awarding

or denying a deficiency for a surviving spouse’s year’s allowance under N.C. Gen. Stat.

§ 30-15 (2017).

The appeal of a clerk of court’s order regarding a deficiency in a year’s

allowance falls under the general area of “[a]ppeal[s] of trust and estate matters

determined by clerk,” and is governed by N.C. Gen. Stat. § 1-301.3. This statute

provides, in relevant part:

(a) Applicability. -- This section applies to matters arising
in the administration of trusts and of estates of decedents,
incompetents, and minors. . . .

(b) Clerk to Decide Estate Matters. -- In matters covered by
this section, the clerk shall determine all issues of fact and
law. The clerk shall enter an order or judgment, as
appropriate, containing findings of fact and conclusions of
law supporting the order or judgment.

(c) Appeal to Superior Court. -- A party aggrieved by an
order or judgment of the clerk may appeal to the superior
court by filing a written notice of the appeal with the clerk
within 10 days of entry of the order or judgment after

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Opinion of the Court

service of the order on that party. . . .

(d) Duty of Judge on Appeal. -- Upon appeal, the judge of
the superior court shall review the order or judgment of the
clerk for the purpose of determining only the following:

(1) Whether the findings of fact are supported by the
evidence.

(2) Whether the conclusions of law are supported by the
findings of facts.

(3) Whether the order or judgment is consistent with the
conclusions of law and applicable law.

N.C. Gen. Stat. § 1-301.3(a)-(d) (emphasis supplied).

This Court has stated:

On appeal to the Superior Court of an order of the Clerk in
matters of probate, the trial court judge sits as an appellate
court. When the order or judgment appealed from does
contain specific findings of fact or conclusions to which an
appropriate exception has been taken, the role of the trial
judge on appeal is to apply the whole record test. In doing
so, the trial judge reviews the Clerk’s findings and may
either affirm, reverse, or modify them. If there is evidence
to support the findings of the Clerk, the judge must affirm.
Moreover, even though the Clerk may have made an
erroneous finding which is not supported by the evidence,
the Clerk’s order will not be disturbed if the legal
conclusions upon which it is based are supported by other
proper findings.

Pate, 119 N.C. App. at 402-03, 459 S.E.2d at 2-3 (citations and quotation marks

omitted). The superior court’s order granting Respondent’s appeal and vacating the

clerk of court’s Deficiency Order states, in relevant part:

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Opinion of the Court

[U]pon the Respondent’s appeal of the November 20, 2017
Order of the Honorable Mark Hammonds, Clerk of
Superior Court for Anson County, finding a year’s
allowance deficiency, and after review of the court file,
evidence presented, petitioner’s post hearing brief,
applicable law, and arguments of counsel, the Court finds
that the Honorable Mark Hammonds, Clerk of Superior
Court for Anson County, entered an Order on January 20,
2016 Assigning Spouse[‘s] Year’s Allowance of $13,349.50,
as a credit against the spouse[‘s] testate share, without any
deficiency. The court finds that the January 20, 2016 Order
to be the controlling Order, and that the Order entered on
November 20, 2017 by Clerk Hammonds finding a year’s
allowance deficiency of $16,650.50 is null and void and of
no effect.

The superior court’s order does not indicate the court applied the deferential

standard of review as is required by N.C. Gen. Stat. § 1-301.3(d), but instead

disregarded the clerk of court’s findings of fact and conducted a de novo review. The

superior court’s ruling on Respondent’s appeal of the clerk’s Deficiency Order must

also be vacated and remanded to the superior court for application of the correct

standard of review as is required by N.C. Gen. Stat. § 1-301.3(d). See Concerned

Citizens, 329 N.C. at 54-55, 404 S.E.2d at 688.

VI. Conclusion

The superior court applied the wrong scope of review to the clerk of court’s

Revocation Order and the wrong standard of review to the clerk’s Deficiency Order.

We vacate and remand these matters to the superior court for application of the

statutorily mandated scopes of review. Upon remand, the superior court must

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Opinion of the Court

conduct “a hearing de novo” of Petitioner’s appeal of the Revocation Order in

accordance with N.C. Gen. Stat. §§ 28A-9-4, 28A-2-9(b), and 1-301.2. The superior

court must apply the controlling standard of review required by N.C. Gen. Stat. § 1-

301.3(d) to Respondent’s appeal of the Deficiency Order. It is so ordered.

VACATED AND REMANDED.

Judges ZACHARY and COLLINS concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4368845. Public record. Not legal advice.