In re the Estate of Adamee , 28 N.C. App. 229 ( 1976 )

CLARK, Judge.

The questions raised by this appeal involve, first, the right of the respondent to qualify for appointment as administratrix of the estate of her deceased husband, and, second, her right to share in his estate.

All parties admit the execution of the deed of separation by respondent and her husband and the entry of Consent Judgment, both dated 20 December 1973. Under the terms of the deed of separation respondent renounced (1) her right to share in the estate of her husband under G.S. 29-13 and G.S. 29-14; and (2) her right to administer upon his estate under G.S. 28A-4-l(6). The parties do not question the validity or the construction of the deed of separation. See Lane v. Scarborough, 284 N.C. 407, 200 S.E. 2d 622 (1973).

But it is established in North Carolina that where a husband and wife enter into a,separation agreement and thereafter become reconciled and renew their marital relations, the agreement is rescinded for every purpose insofar as it remains executory. Tilley v. Tilley, 268 N.C. 630, 151 S.E. 2d 592 (1966) ; Jones v. Lewis, 243 N.C. 259, 90 S.E. 2d 547 (1955) ; Bass v. Mooresville Mills, 11 N.C. App. 631, 182 S.E. 2d 246 (1971).

The evidence offered by respondent on one hand and petitioners on the other is conflicting. The Clerk found that there was a reconciliation and resumption of marital relations. On appeal Judge Braswell found that the conflicting evidence raised issues of fact, and ordered that an issue be submitted for jury determination as follows: “Did the late Paul Chester Adamee and his wife Raye T. Adamee become reconciled and renew their marital relations after December 20, 1973?” It is clear that the determination of this issue would determine both the right of the Clerk to appoint respondent to administer the estate and her right to share in the estate.

The respondent contends that the petitioners’ appeal, without exceptions to specific findings of fact, from the order of the Clerk of Superior Court presented for determination to the Superior Court only whether the findings of the Clerk supported his order and that the Superior Court was without authority to order a jury trial upon the issue of reconciliation and resumption of marital relations. Respondent relies on In re Estate of Lowther, 271 N.C. 345, 156 S.E. 2d 693 (1967), which involved an appeal to Superior Court, without exceptions to specific findings of fact, from an order from the Clerk removing an administratrix upon the finding that she was not the widow of the deceased. The Superior Court found that an issue of fact arose from the pleadings, vacated the Clerk’s order, and transferred the proceeding to the civil issue docket for trial. The Supreme Court, in reversing the Superior Court, held that where the appellant does not challenge any of the Clerk’s findings of fact, the superior court judge reviews the record to determine whether there are errors of law, and the appeal carries to the judge the question of whether the Clerk’s findings of fact sustain his order. In re Moore, 25 N.C. App. 36, 212 S.E. 2d 184 (1975).

Both the case before us and the Lowther case involved probate matters on appeal from the Clerk to the Superior Court, and it is obvious that Lowther controls the case before us unless there is some compelling reason for finding that the Lowther decision is no longer authority for the proposition that on appeal from the Clerk to the Judge of Superior Court the hearing is not de novo.

In the Lowther decision Justice (now Chief Justice) Sharp traced the jurisdiction of probate matters from the ecclesiastical courts in England, through our Constitution of 1868 and repeal by the Constitutional Convention of 1875. “Since then the jurisdiction of the clerks of the Superior Courts with reference to the administration of estates of deceased persons has been altogether statutory. . . . Section 102 of N. C. Code of 1883 — now G.S. 2-1 — abolished the office of probate judge and transferred the duties which the clerks had previously performed as judges of probate to them as clerks of the Superior Court.” 271 N.C. at 348. Lowther relied on In re Simmons, 266 N.C. 702, 147 S.E. 2d 231 (1966), which stated that “the appellate jurisdiction ... is derivative and appeals present for review only errors of law committed by the clerk.” 266 N.C. at 707.

G.S. 2-1 was specifically repealed on 1 October 1971 by Session Laws of 1971, c. 363, s. 11. Many of the jurisdictional statutes included in Chapter 1 and Chapter 2 of the General Statutes were repealed, or were replaced, by Chapter 810, Session Laws of 1965, and other statutes enacted subsequently, to implement the “Court Improvement Amendment” (adopted in 1961 as proposed by the Session Laws of 1961, c. 313). The amendment is now a part of the new Constitution of North Carolina, Article IV, effective 1 July 1971. These statutes are now included in Chapter 7A of the General Statutes.

G.S. 7A-240, after providing for the vesting in the superior court division and the district court division original jurisdiction of all justiciable matters of a civil nature, concludes with this sentence: “Except in respect of proceedings in probate and the administration of decedents’ estates, the original civil jurisdiction so vested in the trial divisions is vested concurrently in each division.” G.S. 7A-241 provides: “Exclusive original jurisdiction for the probate of wills and the administration of decedents’ estates is vested in the superior court division, and is exercised by the superior courts and by the clerks of superior court as ex officio judges of probate according to the practice and procedure provided by law.” G.S. 7A-251 provides: “In all matters properly cognizable in the superior court division which are heard originally before the clerk of superior court, appeals lie to the judge of superior court having jurisdiction from all orders and judgments of the clerk for review in all matters of law or legal inference, in accordance with the procedure provided in chapter 1 of the General Statutes.”

The effect of these statutes is to take from the Clerk exclusive original jurisdiction of probate matters, to vest in the Clerk and the Superior Court concurrent jurisdiction of probate matters, and to provide for appeals from the Clerk directly to the judges of superior court, bypassing the district courts, on all such matters heard originally before the Clerks. And G.S. 28-1, (as well as Articles 1 thru 7 of Chapter 28, General Statutes) vesting probate jurisdiction, including the granting of letters of administration, in the Clerk was repealed by the Session Laws of 1973, c. 1329, effective 1 October 1975. G.S. 28A-2-1, replacing G.S. 28-1, provides:

“The clerk of superior court of each county, ex officio judge of probate, shall have jurisdiction of the administration, settlement, and distribution of estates of decedents including, but not limited to, the following:

(1) Probate of wills;

(2) Granting of letters testamentary and of administration, or other proper letters of authority for the administration of estates.”

G.S. 28A-2-1 in substance vests in the Clerk “jurisdiction” of the named probate matters without vesting concurrent jurisdiction in the superior court. But" we find that the jurisdiction statutes in Chapter 7A are controlling. The word “jurisdiction” in G.S. 28A-2-1 is used in the sense of assigning original authority to the Clerk, and was not intended to change the vesting of concurrent jurisdiction in the Clerk and the Superior Court under G.S. 7A-241.

The reference in G.S. 7A-251 to “the procedure provided in chapter 1” is to Article 27, Chapter 1 of the General Statutes, entitled “Appeal.” G.S. 1-272 provides in part: “Appeals lie to the judge of the superior court having jurisdiction, either in session or vacation, from judgments of the clerk of the superior court in all matters of law or legal inference.” G.S. 1-273 provides: “If issues of law and fact, or of fact only, are raised before the clerk, he shall transfer the case to the civil issue docket for trial of the issues at the next ensuing session of the superior court.” G.S. 1-276, which confers jurisdiction upon the judge of superior court on appeal in civil actions and special proceedings begun before the clerk “to hear and determine all matters in controversy,” has no application to probate matters.

Under a strict construction of G.S. 1-272 and G.S. 1-273, in probate matters originally heard by the clerk, an appeal would lie directly to the judge of superior court in matters of law and legal inference; but in the hearing before the clerk if issues of fact, or both law and fact, were raised, the appeal would lie directly to the superior court for jury trial on the issues of fact; But in our opinion this strict construction would ignore the “according to the practice and procedure provided by law” mandate of G.S. 7A-241. In the Lowther decision Justice Sharp (now Chief Justice), in tracing the history of probate jurisdiction, quoted 31 Am. Jur., Jury, § 30 (1958) : “ ‘Probate courts, having always proceeded without the intervention of a jury, are not within the application of the constitutional provisions relating to the right of jury trial. 271 N.C. at 347, and concluded that in probate matters if issues of fact did arise “they were nevertheless decided by the clerk, or by the judge on appeal.” 271 N.C. at 351.

The clerk is a part of the superior court. Since G.S. 7A-241 vests concurrent jurisdiction over probate matter in the clerk and the superior court, the clerk does not exercise original and exclusive jurisdiction; upon appeal from the clerk the superior court’s jurisdiction is not derivative, and the judge of superior court has the right to hear and determine all matters in controversy as if the case was originally before him. See Redevelopment Comm. v. Grimes, 277 N.C. 634, 178 S.E. 2d 345 (1971). We conclude, therefore, that upon appeal from the order of the clerk of superior court the petitioners were entitled to a de novo hearing by the judge of superior court on both the right of respondent to qualify as administratrix and her right to share in the estate of her deceased husband. And the judge of superior court in the exercise of his inherent powers had the right to submit to the jury the one issue that would resolve both the right to qualify as administratrix, a probate matter, and the right to share in the decedent’s estate, which is not a probate matter. See In re Estate of Ives, 248 N.C. 176, 102 S.E. 2d 807 (1958), for proceeding involving right of intestate succession.

If, in this case, the Superior Court finds error in the order of the Clerk relative to the granting of letters of administration, it will not appoint a personal representative but must remand the cause to the Clerk for this purpose consistent with the decision of the Superior Court; the assignment of original authority of probate matters to the Clerk in G.S. 28A-2-1 is supported by, and not contravened by, G.S. 7A-241.

The Court of Appeals has recognized, and does now recognize, that it does not have the authority to overrule the decisions of the Supreme Court. Mabry v. Bowen, 14 N.C. App. 646, 188 S.E. 2d 651 (1972). However, where the decision of the Supreme Court, wholly or in part, is based on statutes which have since been repealed or amended so as to remove the statutory support, the Court of Appeals has the authority and the duty to recognize the statutory change and its effect upon the decision. The Supreme Court under G.S. 7A-31 has the right on its own motion to certify this cause for review. Since the decision in 1967, In re Lowther, supra, has been followed, or cited with approval, in the following cases: In re Spinks, 7 N.C.App. 417, 173 S.E. 2d 1 (1970) ; In re Green, 9 N.C. App. 326, 176 S.E. 2d 19 (1970); In re Moore, 25 N.C. App. 36, 212 S.E. 2d 184 (1975).

The judgment of the Superior Court appealed from is

Affirmed.

Judges Britt and Parker concur.