{ "id": 9366774, "name": "IN THE MATTER OF THE ESTATE OF PEGGY FAIRLEY ANDERSON, DECEASED", "name_abbreviation": "In re the Estate of Anderson", "decision_date": "2002-02-05", "docket_number": "No. COA01-143", "first_page": "501", "last_page": "509", "citations": [ { "type": "official", "cite": "148 N.C. App. 501" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "554 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "opinion_index": 0 }, { "cite": "146 N.C. App. 733", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11364265 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc-app/146/0733-01" ] }, { "cite": "33 S.E.2d 866", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1945, "pin_cites": [ { "page": "867" } ], "opinion_index": 0 }, { "cite": "225 N.C. 165", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8602049 ], "year": 1945, "pin_cites": [ { "page": "168" } ], "opinion_index": 0, "case_paths": [ "/nc/225/0165-01" ] }, { "cite": "123 S.E.2d 811", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1962, "pin_cites": [ { "page": "815", "parenthetical": "estoppel does not bind strangers" }, { "page": "815" } ], "opinion_index": 0 }, { "cite": "256 N.C. 324", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572639 ], "weight": 2, "year": 1962, "pin_cites": [ { "page": "329", "parenthetical": "estoppel does not bind strangers" }, { "page": "329" } ], "opinion_index": 0, "case_paths": [ "/nc/256/0324-01" ] }, { "cite": "452 S.E.2d 311", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "338 N.C. 311", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518274, 2521002, 2517452, 2520793, 2517881 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/338/0311-01", "/nc/338/0311-04", "/nc/338/0311-05", "/nc/338/0311-02", "/nc/338/0311-03" ] }, { "cite": "270 S.E.2d 606", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "608-09" } ], "opinion_index": 0 }, { "cite": "49 N.C. App. 94", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519521 ], "year": 1980, "pin_cites": [ { "page": "97" } ], "opinion_index": 0, "case_paths": [ "/nc-app/49/0094-01" ] }, { "cite": "445 S.E.2d 70", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "73" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 446", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12132134 ], "pin_cites": [ { "page": "452" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0446-01" ] }, { "cite": "362 S.E.2d 542", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "546", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "321 N.C. 244", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566582 ], "year": 1987, "pin_cites": [ { "page": "249", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0244-01" ] }, { "cite": "70 Yale L.J. 45", "category": "journals:journal", "reporter": "Yale L.J.", "year": 1960, "pin_cites": [ { "page": "56" } ], "opinion_index": 0 }, { "cite": "321 S.E.2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "citing Homer Clark, Estoppel Against Jurisdictional Attack on Decrees of Divorce, 70 Yale L.J. 45, 56 (1960)" } ], "opinion_index": 0 }, { "cite": "311 N.C. 760", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4680069, 4685382, 4684653, 4686961, 4685335 ], "year": 1984, "pin_cites": [ { "parenthetical": "citing Homer Clark, Estoppel Against Jurisdictional Attack on Decrees of Divorce, 70 Yale L.J. 45, 56 (1960)" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0760-03", "/nc/311/0760-02", "/nc/311/0760-04", "/nc/311/0760-05", "/nc/311/0760-01" ] }, { "cite": "311 S.E.2d 659", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "667", "parenthetical": "citing Homer Clark, Estoppel Against Jurisdictional Attack on Decrees of Divorce, 70 Yale L.J. 45, 56 (1960)" } ], "opinion_index": 0 }, { "cite": "66 N.C. App. 522", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525579 ], "year": 1984, "pin_cites": [ { "page": "533", "parenthetical": "citing Homer Clark, Estoppel Against Jurisdictional Attack on Decrees of Divorce, 70 Yale L.J. 45, 56 (1960)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/66/0522-01" ] }, { "cite": "33 S.E.2d 871", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1945, "pin_cites": [ { "page": "877" } ], "opinion_index": 0 }, { "cite": "225 N.C. 156", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601928 ], "year": 1945, "pin_cites": [ { "page": "164" } ], "opinion_index": 0, "case_paths": [ "/nc/225/0156-01" ] }, { "cite": "263 S.E.2d 290", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "293", "parenthetical": "quoting Kearney v. Thomas, 225 N.C. 156, 164, 33 S.E.2d 871, 877 (1945)" } ], "opinion_index": 0 }, { "cite": "45 N.C. App. 455", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549289 ], "year": 1980, "pin_cites": [ { "page": "459", "parenthetical": "quoting Kearney v. Thomas, 225 N.C. 156, 164, 33 S.E.2d 871, 877 (1945)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/45/0455-01" ] }, { "cite": "495 S.E.2d 907", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "913", "parenthetical": "summary judgment \"inappropriate where issues such as motive, intent, and other subjective feelings and reactions are material and where the evidence is subject to conflicting interpretations\"" } ], "opinion_index": 0 }, { "cite": "347 N.C. 520", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551066 ], "year": 1998, "pin_cites": [ { "page": "530", "parenthetical": "summary judgment \"inappropriate where issues such as motive, intent, and other subjective feelings and reactions are material and where the evidence is subject to conflicting interpretations\"" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0520-01" ] }, { "cite": "139 S.E.2d 723", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "726" } ], "opinion_index": 0 }, { "cite": "263 N.C. 445", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570568 ], "year": 1965, "pin_cites": [ { "page": "448" } ], "opinion_index": 0, "case_paths": [ "/nc/263/0445-01" ] }, { "cite": "293 S.E.2d 767", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "770" } ], "opinion_index": 0 }, { "cite": "306 N.C. 540", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571675 ], "year": 1982, "pin_cites": [ { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0540-01" ] }, { "cite": "241 S.E.2d 715", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "716-17", "parenthetical": "cause of action must be transferred to superior court pursuant to N.C. Gen. Stat. \u00a7 1-174 for jury determination of factual issues" } ], "opinion_index": 0 }, { "cite": "35 N.C. App. 558", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550601 ], "year": 1978, "pin_cites": [ { "page": "559-60", "parenthetical": "cause of action must be transferred to superior court pursuant to N.C. Gen. Stat. \u00a7 1-174 for jury determination of factual issues" } ], "opinion_index": 0, "case_paths": [ "/nc-app/35/0558-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-174", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "2 S.E.2d 850", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1939, "opinion_index": 1 }, { "cite": "215 N.C. 696", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631578 ], "year": 1939, "opinion_index": 1, "case_paths": [ "/nc/215/0696-01" ] }, { "cite": "86 N.C. 54", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272763 ], "weight": 2, "year": 1882, "pin_cites": [ { "page": "55" } ], "opinion_index": 1, "case_paths": [ "/nc/86/0054-01" ] }, { "cite": "156 S.E.2d 693", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1967, "pin_cites": [ { "page": "695" }, { "page": "700" } ], "opinion_index": 1 }, { "cite": "271 N.C. 345", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563919 ], "weight": 3, "year": 1967, "pin_cites": [ { "page": "347" } ], "opinion_index": 1, "case_paths": [ "/nc/271/0345-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-301.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 1 }, { "cite": "N.C. Gen. Stat. \u00a7 1-174", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 1 } ], "analysis": { "cardinality": 806, "char_count": 19638, "ocr_confidence": 0.747, "pagerank": { "raw": 4.155590723968463e-08, "percentile": 0.26715553686720733 }, "sha256": "b3fa5c53d2c2d2220c3df926fac32872a1585d5226f3a7ba67df8eae855b0686", "simhash": "1:c32dd3e1952b247a", "word_count": 3218 }, "last_updated": "2023-07-14T20:14:25.013425+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McCULLOUGH concurs.", "Judge CAMPBELL dissents." ], "parties": [ "IN THE MATTER OF THE ESTATE OF PEGGY FAIRLEY ANDERSON, DECEASED" ], "opinions": [ { "text": "GREENE, Judge.\nPetitioner Ernest McRae (McRae) appeals an order filed 4 October 2000 granting summary judgment in favor of respondent Alforence Anderson (Anderson).\nOn 11 December 1997, McRae filed a petition to revoke the letters of administration issued to Anderson as the administrator of the estate of Peggy Fairley Anderson (Fairley) and to request the appointment of a suitable administrator to take Anderson\u2019s place. The petition asserts McRae married Fairley on 22 June 1962 and at no time prior to Fairley\u2019s death on 3 September 1991 did McRae and Fairley obtain a divorce. While McRae acknowledges in his petition that Fairley and Anderson participated in a wedding ceremony on 10 September 1965, McRae contends this marriage is void.\nAn order to show cause filed 11 December 1997 was issued to Anderson by the Clerk of Superior Court of Richmond County (the clerk). Anderson filed a response on 10 March 1998 challenging McRae on the grounds of standing under N.C. Gen. Stat. \u00a7 31A-1 and estoppel. In his answer to McRae\u2019s request for admissions filed 4 May 1998, Anderson denied any knowledge of McRae\u2019s marriage to Fairley until after Fairley\u2019s funeral when Anderson was presented with a marriage certificate proving the marriage. Anderson\u2019s answer further stated: Fairley had five children when Anderson married her; three more children were born in the years following the marriage ceremony of Anderson and Fairley; and Anderson and Fairley lived together as husband and wife for twenty-six years, until Fairley\u2019s death.\nIn a deposition on 10 February 1999, McRae testified that sometime after their marriage in 1962, Fairley told McRae she was going to divorce him but that he never received any court documents evidencing such a divorce. Believing nevertheless that Fairley had divorced him, McRae entered into a marriage ceremony with Doris McDonald (McDonald) on 13 August 1966. McDonald subsequently divorced McRae because she found out McRae was still married to Fairley. For the last twenty-five to thirty years, McRae has filed his tax returns as a single person. McRae admitted to having heard rumors over the years that he was still married to Fairley, but he never asked Fairley whether or not they were divorced.\nBy order of the clerk filed 7 September 1999, the matter was transferred to the superior court for trial by jury pursuant to N.C. Gen. Stat. \u00a7 1-174 and \u00a7 l-273(a) (repealed 1999). See Burke v. Harrington, 35 N.C. App. 558, 559-60, 241 S.E.2d 715, 716-17 (1978) (cause of action must be transferred to superior court pursuant to N.C. Gen. Stat. \u00a7 1-174 for jury determination of factual issues). Anderson filed a motion for summary judgment on 13 September 2000. The trial court granted Anderson\u2019s motion in its October 4 order, thereby dismissing McRae\u2019s petition.\nThe issues are whether: (I) there are genuine issues of material fact as to whether McRae lacked standing under N.C. Gen. Stat. \u00a7 31A-1 to petition the superior court for relief; and (II) Anderson had standing to raise the issue of quasi-estoppel as a bar to McRae\u2019s challenge of the validity of Anderson\u2019s marriage to Fairley.\nI\nN.C. Gen. Stat. \u00a7 31\u00c1-1\nAnderson successfully argued to the trial court that under N.C. Gen. Stat. \u00a7 31A-1 McRae would be barred from recovering from Fairley\u2019s estate as a surviving spouse and therefore lacked standing as a real party in interest to petition the superior court to remove Anderson as the administrator of Fairley\u2019s estate. Only a real party in interest has the legal right to maintain a cause of action. N.C.G.S. \u00a7 1-57 (1999); see Crowell v. Chapman, 306 N.C. 540, 544, 293 S.E.2d 767, 770 (1982). A real party in interest is one \u201cwho is benefit[t]ed or injured by the judgment in a case.\u201d Parnell v. Nationwide Mut. Ins. Co., 263 N.C. 445, 448, 139 S.E.2d 723, 726 (1965). Section 31A-1 bars the rights of a spouse who engages in certain conduct, including the following: (1) the spouse \u201cvoluntarily separates from the other spouse and lives in adultery and such has not been condoned,\u201d N.C.G.S. \u00a7 31A-l(a)(2) (1999); (2) the spouse \u201cwillfully and without just cause abandons and refuses to live with the other spouse and is not living with the other spouse at the time of such spouse\u2019s death,\u201d N.C.G.S. \u00a7 31A-l(a)(3) (1999); or (3) the spouse \u201cknowingly contracts a bigamous marriage,\u201d N.C.G.S. \u00a7 31A-l(a)(5) (1999). There is no evidence in the record, McRae \u201cwillfully or without just cause\u201d abandoned Fairley, leaving this Court to consider the remaining two actions alleged by Anderson.\nAs to section 31A-l(a)(2), which bars a spouse who \u201cvoluntarily separates from the other spouse and lives in adultery and such has not been condoned,\u201d the critical element appears to be whether Fairley \u201ccondoned\u201d McRae\u2019s conduct. Condonation is defined as the \u201cimplied forgiveness\u201d of an \u201coffense.\u201d Black\u2019s Law Dictionary 295 (6th ed. 1990). If Fairley indeed never sought a divorce, her marriage to Anderson could reasonably be construed as condonation of any equivalent cond\u00fact by McRae. Anderson, on the other hand, contends Fairley never knew of McRae\u2019s marriage to McDonald and thus there could not have been any condonation. In respect to section 31A-l(a)(5), barring a spouse who \u201cknowingly contracts a bigamous marriage,\u201d McRae asserts he believed Fairley had divorced him and only became suspicious upon hearing rumors years later. Consequently, McRae claims his actions were not committed \u201cknowingly.\u201d Because the parties presented conflicting evidence dealing with subjective feelings and intent, i.e. whether McRae\u2019s acts were knowing and condoned by Fairley, summary judgment based on the operation of section 31A-1 was not proper. See Creech v. Melnik, 347 N.C. 520, 530, 495 S.E.2d 907, 913 (1998) (summary judgment \u201cinappropriate where issues such as motive, intent, and other subjective feelings and reactions are material and where the evidence is subject to conflicting interpretations\u201d); see also N.C.G.S. \u00a7 1A-1, Rule 56(c) (1999) (summary judgment inappropriate where genuine issues of material fact exist).\nII\nEstoppel\nAnderson further argues summary judgment was proper because McRae\u2019s prior conduct estops him from attacking the validity of Anderson\u2019s marriage to Fairley. North Carolina courts presume the validity of a second marriage unless \u201c \u2018the contrary [is] proved.\u2019 \u201d Ivory v. Greer Bros., Inc., 45 N.C. App. 455, 459, 263 S.E.2d 290, 293 (1980) (quoting Kearney v. Thomas, 225 N.C. 156, 164, 33 S.E.2d 871, 877 (1945)). The burden to disprove the validity of the second marriage rests on the attacking party. Id. A party, however, may be barred under quasi-estoppel from such an attack if the \u201cattack ... is inconsistent with [his or her] prior conduct.\u201d Mayer v. Mayer, 66 N.C. App. 522, 533, 311 S.E.2d 659, 667, disc. review denied, 311 N.C. 760, 321 S.E.2d 140 (1984) (citing Homer Clark, Estoppel Against Jurisdictional Attack on Decrees of Divorce, 70 Yale L.J. 45, 56 (1960)). This is so \u201c \u2018regardless of whether the person [attacked] had actually relied upon that conduct.\u2019 \u201d Taylor v. Taylor, 321 N.C. 244, 249, 362 S.E.2d 542, 546 (1987) (citation omitted). Failure of a person to obtain a copy of a divorce judgment prior to entering into a second marriage constitutes culpable negligence, barring that person under quasi-estoppel from assuming a legal position inconsistent with such previous negligence. Lane v. Lane, 115 N.C. App. 446, 452, 445 S.E.2d 70, 73 (citing Redfern v. Redfern, 49 N.C. App. 94, 97, 270 S.E.2d 606, 608-09 (1980)) (plaintiff estopped from challenging validity of second marriage where she was culpably negligent in not obtaining a copy of the divorce judgment before remarrying), disc. review denied, 338 N.C. 311, 452 S.E.2d 311 (1994).\nBut in order for a party to have standing to raise the issue of estoppel, the asserted estoppel must be \u201cmutual and reciprocal.\u201d 28 Am. Jur. 2d Estoppel and Waiver \u00a7 115 (1966). According to the principle of mutuality, \u201can estoppel operates neither in favor of, nor against, strangers \u2014 that is persons who are neither parties nor privies to the transaction out of which the estoppel arose.\u201d Id.; see Bank v. Rich, 256 N.C. 324, 329, 123 S.E.2d 811, 815 (1962) (estoppel does not bind strangers). The administrator of an estate is recognized as standing in such privity with the decedent, as her personal representative, that an estoppel that would have operated for or on the decedent can be asserted by or against the administrator. See 28 Am. Jur. 2d Estoppel and Waiver \u00a7 121.\nIn this case, Anderson argues McRae\u2019s subsequent marriage to McDonald, which McRae entered into without obtaining a divorce judgment for his marriage to Fairley, bars McRae from challenging Anderson\u2019s marriage to Fairley. Anderson, however, has no standing to raise this issue since the case at hand involves the preliminary consideration of Anderson\u2019s qualification as administrator of Fairley\u2019s estate, not a representation of Fairley\u2019s interests by the administrator of her estate. In defending his own status, Anderson did not step \u201cin the shoes of\u2019 the decedent, Cheshire v. First Presbyterian Church, 225 N.C. 165, 168, 33 S.E.2d 866, 867 (1945), and thus attain the privity required to argue estoppel, Rich, 256 N.C. at 329, 123 S.E.2d at 815. For the purposes of this proceeding, Anderson remained a stranger to the marriage between McRae and Fairley and McRae\u2019s and Fairley\u2019s subsequent conduct in relation to this marriage and thus did not have standing to assert estoppel against McRae.\nSummary\nIn conclusion, the trial court erred in granting summary judgment to Anderson because there were genuine issues of material fact as to the issue of McRae\u2019s standing under section 31A-1. The trial court also erred in its grant of summary judgment to Anderson on the basis of estoppel because Anderson lacked standing to raise this issue. We therefore remand this case to the trial court for trial on the merits pursuant to section I of this opinion and for entry of summary judgment in favor of McRae on the issue of estoppel under section II, see N.C.G.S. \u00a7 1A-1, Rule 56(c) (summary judgment proper if there is no genuine issue of material fact and \u201cany party is entitled to a judgment as a matter of law\u201d).\nReversed and remanded.\nJudge McCULLOUGH concurs.\nJudge CAMPBELL dissents.\n. In In re Estate of Hanner, 146 N.C. App. 733, 554 S.E.2d 673 (2001), this Court found that the children of the deceased father could properly attack the validity of their father\u2019s marriage to the petitioner who had been married before but whose divorce decree from her previous marriage appeared to be flawed. This Court held that the children had failed to overcome the burden of disproving the validity of the petitioner\u2019s second marriage to the father and ruled in favor of the petitioner. Id. As noted above, an attack on the validity of a second marriage can be barred under the theory of estoppel if raised by a party with the requisite privity. See 28 Am. Jur. 2d Estoppel and Waiver \u00a7 115. The issue of privity, however, was not raised in Hanner because the facts did not support an argument of estoppel. If they had, the children in Hanner would have had to show privity as required of Anderson in this case.", "type": "majority", "author": "GREENE, Judge." }, { "text": "CAMPBELL, Judge,\ndissenting.\nThis is a proceeding pursuant to N.C. Gen. Stat. \u00a7 28A-9-1 to have respondent Anderson removed as administrator of the estate of Peggy Fairley Anderson. On 11 December 1997, petitioner McRae filed a motion to revoke the letters of administration issued to Anderson and to request the appointment of a suitable successor administrator.\nThe clerk of superior court issued an order to respondent Anderson to show cause why his letters of administration should not be revoked. Anderson filed a response on 10 March 1998 challenging McRae\u2019s petition on the grounds of standing, estoppel, laches, and the statute of limitations. By order of the clerk filed 7 September 1999, the matter was transferred to the civil issue docket of superior court for trial of the factual issues pursuant to N.C. Gen. Stat. \u00a7 1-174 and \u00a7 l-273(a) (repealed and replaced by N.C. Gen. Stat. \u00a7 1-301.1 to \u00a7 1-301.3, effective 1 Jan. 2000).\nOn 13 September 2000, respondent Anderson filed a motion for summary judgment, claiming there were no genuine issues of material fact and that he was entitled to judgment as a matter of law. The trial court granted respondent\u2019s motion for summary judgment by order entered 4 October 2000, and dismissed McRae\u2019s petition to revoke Anderson\u2019s letters of administration. The majority opinion concludes that the trial court erred in granting summary judgment to Anderson because there were genuine issues of material fact as to the issue of McRae\u2019s standing to bring the petition, and Anderson lacked proper standing to raise the issue of estoppel. Accordingly, the majority opinion remands the matter to superior court for trial on the merits of the issue of standing, and directs entry of summary judgment in favor of McRae on the issue of estoppel.\nI respectfully dissent from the majority opinion for I conclude that the trial court did not have subject matter jurisdiction to enter summary judgment on the merits of McRae\u2019s petition to revoke Anderson\u2019s letters of administration. Therefore, I would vacate the trial court\u2019s summary judgment order and remand this matter to superior court for a jury trial on the factual issues presented by McRae\u2019s petition. When these factual issues have been determined by the jury, the matter is to be remanded to the clerk of superior court for determination of the legal question presented \u2014 whether Anderson\u2019s letters of administration should be revoked. The clerk\u2019s decision on this issue is then subject to appeal to superior court pursuant to N.C. Gen. Stat. \u00a7 28A-9-4.\nThe clerk of superior court has express authority under N.C.G.S. \u00a7 28A-9-1 (formerly N.C.G.S. \u00a7 28-32) \u201cto revoke letters of administration which were improperly issued and to remove any administrator who has been guilty of default or misconduct in the execution of his office.\u201d In re Estate of Lowther, 271 N.C. 345, 347, 156 S.E.2d 693, 695 (1967). In In re Estate of Lowther, Justice Sharp, writing for the Court, examined the history of the clerk of superior court\u2019s authority as judge of probate, and clearly set forth the proper procedure to be followed in proceedings to revoke letters of administration. Most importantly, Justice Sharp concluded (1) that proceedings to repeal letters of administration must be commenced before the clerk who issued them in the first instance, and (2) that the superior court has no jurisdiction to appoint or remove an administrator. Id. at 354, 156 S.E.2d at 700. \u201cIn other words, jurisdiction in probate matters cannot be exercised by the judge of the Superior Court except upon appeal.\u201d Id.\nThe procedure that Justice Sharp held to be proper in proceedings of this sort was earlier set out by the Supreme Court in Murrill v. Sandlin, 86 N.C. 54 (1882), a proceeding to remove an administrator, in which the Court said:\nIt is thus incumbent on the probate judge to make the inquiry, and ascertain for himself the facts upon which the legal discretion reposed in him to remove an incompetent or unfaithful officer, is to be exercised. The original authority to act is delegated to him alone, and he may require the whole issue made between the parties, or any specific question of fact, to be tried by a jury, under the supervision of the judge of the superior court. When these have been determined by the jury, the probate judge, with such supplemental findings of fact by himself as may be necessary, proceeds to decide the question of removal, subject to the right of either party to the contest to have the cause reheard upon appeal.\nId. at 55. The subsequent repeal of N.C.G.S. \u00a7 28-32 and its replacement by N.C.G.S. \u00a7 28A-9-1 does not alter the procedure that should be followed in a proceeding to revoke letters of administration.\nApplying the principles reaffirmed by Justice Sharp\u2019s opinion in In re Estate of Lowther; the procedure that should have been followed upon the clerk\u2019s transfer of this matter to superior court was to have a jury trial on the factual issues presented by McRae\u2019s petition. The findings of fact determined by the jury should then have been submitted to the clerk for the clerk to make the initial legal determination of whether Anderson\u2019s letters of administration should be revoked. Thus, I would vacate the trial court\u2019s summary judgment order, and remand for proceedings consistent with the Supreme Court\u2019s decision in In re Estate of Lowther.\nIn addition, I note that the ultimate factual and legal determinations entered in the subsequent proceedings, in this matter would not be res judicata in any other proceeding between the parties which petitioner McRae may be entitled to pursue. In re Estate of Lowther, 271 N.C. 345, 156 S.E.2d 693; Jones v. Palmer, 215 N.C. 696, 2 S.E.2d 850 (1939).\n. At this stage of a proceeding to revoke letters of administration, the function of the superior court is simply to supervise the jury trial of any issues of fact that are presented by the petition to revoke and have been properly transferred to superior court by the clerk. This role is different from determining whether there are genuine issues of material fact related to the legal question presented by the petition \u2014 whether the letters of administration at issue should be revoked. The superior court does not have jurisdiction at this point to make such a determination. See In re Estate of Lowther, 271 N.C. 345, 156 S.E.2d 693 (1967).\n. Specifically, the two actions which the record indicates McRae has already commenced against Anderson: (1) the partition proceeding in 97 SP 163, and (2) the action for wrongful distribution of proceeds and benefits in 97 CVS 1345.", "type": "dissent", "author": "CAMPBELL, Judge," } ], "attorneys": [ "Donaldson & Black, P.A., by Arthur J. Donaldson and Rachel Scott Decker, for petitioner-appellant.", "Sharpe & Buckner, PLLG, by Richard G. Buckner, for respondent-appellee.", "No brief filed for pro se respondent children." ], "corrections": "", "head_matter": "IN THE MATTER OF THE ESTATE OF PEGGY FAIRLEY ANDERSON, DECEASED\nNo. COA01-143\n(Filed 5 February 2002)\n1. Estates\u2014 revocation of letters of administration \u2014 summary judgment\nThe trial court should not have granted summary judgment for petitioner (McRae) in an action to revoke letters of administration issued to respondent (Anderson) for the estate of Fairley where Fairley first married McRae, told him that she was divorcing him but apparently never did so, and subsequently married Anderson, and McRae subsequently remarried. The parties presented conflicting evidence about whether McRae\u2019s acts were knowing and whether they were condoned by Fairley, which bore on whether McRae would be barred from recovering from the estate as a surviving spouse and therefore on whether McRae lacked standing.\n2. Estates\u2014 qualification of administrator \u2014 standing to assert estoppel\nThe administrator of an estate (Anderson) did not have standing to assert estoppel against a petitioner (McRae) seeking to have Anderson\u2019s letters of administration revoked where the decedent (Fairley) had been married to both. The action involved Anderson\u2019s qualification as administrator rather than Fairley\u2019s interests, and Anderson lacks the necessary privity to argue that McRae\u2019s subsequent second marriage bars McRae from challenging Fairley\u2019s second marriage (to Anderson.)\nJudge Campbell dissenting.\nAppeal by petitioner Ernest McRae from order filed 4 October 2000 by Judge William H. Helms in Richmond County Superior Court. Heard in the Court of Appeals 27 November 2001.\nDonaldson & Black, P.A., by Arthur J. Donaldson and Rachel Scott Decker, for petitioner-appellant.\nSharpe & Buckner, PLLG, by Richard G. Buckner, for respondent-appellee.\nNo brief filed for pro se respondent children." }, "file_name": "0501-01", "first_page_order": 531, "last_page_order": 539 }