{ "id": 8528114, "name": "IN THE MATTER OF: THE ESTATE OF WILLIAM L. STURMAN, Deceased", "name_abbreviation": "In re the Estate of Sturman", "decision_date": "1989-04-18", "docket_number": "No. 8826DC635", "first_page": "473", "last_page": "478", "citations": [ { "type": "official", "cite": "93 N.C. App. 473" } ], "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": "168 S.E. 671", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1933, "pin_cites": [ { "page": "672" } ], "opinion_index": 0 }, { "cite": "204 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620242 ], "year": 1933, "opinion_index": 0, "case_paths": [ "/nc/204/0437-01" ] }, { "cite": "96 N.C. 23", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "97 S.E. 216", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1918, "pin_cites": [ { "page": "217" } ], "opinion_index": 0 }, { "cite": "176 N.C. 336", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655945 ], "year": 1918, "opinion_index": 0, "case_paths": [ "/nc/176/0336-01" ] }, { "cite": "281 S.E. 2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "303 N.C. 544", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574372, 8574312, 8574353, 8574295, 8574328 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0544-05", "/nc/303/0544-02", "/nc/303/0544-04", "/nc/303/0544-01", "/nc/303/0544-03" ] }, { "cite": "278 S.E. 2d 330", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "52 N.C. App. 353", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170273 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/52/0353-01" ] }, { "cite": "325 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "2", "parenthetical": "quoting 1 C.J.S., Actions, Section 42 (1936-Supp. 1984)" } ], "opinion_index": 0 }, { "cite": "72 N.C. App. 318", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526657 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/72/0318-01" ] } ], "analysis": { "cardinality": 499, "char_count": 10799, "ocr_confidence": 0.765, "pagerank": { "raw": 9.505882454708161e-08, "percentile": 0.5218199979998834 }, "sha256": "302f6a52d35603921aaeb8b3cc37ac4fda57412fe77e5bd821f1e3eb9bed17d7", "simhash": "1:f6a6b997437c0e40", "word_count": 1851 }, "last_updated": "2023-07-14T17:06:43.799233+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge HEDRICK and Judge ARNOLD concur." ], "parties": [ "IN THE MATTER OF: THE ESTATE OF WILLIAM L. STURMAN, Deceased" ], "opinions": [ { "text": "ORR, Judge.\nI.\nThe first consideration for this Court is whether the procedure for the revocation of the letters testamentary of an administratrix as set forth in G.S. 28A-9-1 is an \u201caction\u201d or \u201cspecial proceeding.\u201d See G.S. 1A-1, Rule 17 (1983). If the revocation matter is an \u201caction\u201d or \u201cspecial proceeding\u201d under G.S. 1A-1, Rule 17(b), then the Clerk had statutory authority to appoint the guardian ad litem.\nRule 17 provides for the appointment of a guardian ad litem \u201cin actions or special proceedings\u201d where a party is either a plaintiff or a defendant. See G.S. 1A-1, Rule 17(b)(1) and (b)(2). In G.S. 1A-1, Rule 17(b)(3), the rule allows the appointment of a guardian ad litem \u201cnotwithstanding the provisions of (b)(1) and (b)(2) ... in any case when it is deemed by the Court in which the action is pending expedient to have the infant ... so represented . . . .\u201d\nThe administratrix argues for a narrow construction of this rule on the grounds that the minor heirs were not \u201cparties\u201d to the revocation procedure and that it was neither an action nor special proceeding as required by Rule 17. We decline to adopt the administratrix\u2019 position and hold that the Clerk was authorized under Rule 17 to appoint a guardian ad litem in this matter. Clearly, the minor heirs had a vested interest in who administered the estate of their deceased father and were entitled under G.S. 28A-9-1 to appeal the decision of the Clerk on the revocation issue. This is sufficient in our view to bring the matter within the purview of Rule 17 providing it is an \u201caction or special proceeding.\u201d\nRelying on the authority of Phil Mechanic Construction Co. v. Haywood, 72 N.C. App. 318, 325 S.E. 2d 1 (1985), we further conclude that the revocation hearing constitutes a special proceeding. In Mechanic, the plaintiffs contended that an action brought under G.S. 45-21.1 et seq. dealing with foreclosure was neither a court action nor a special proceeding. I\nOur Court noted:\n\u2018Actions include those proceedings which are instituted and prosecuted according to the ordinary rules and provisions relative to actions at law or suits in equity . . . special proceedings include those proceedings which are not ordinary in this sense, but are instituted and prosecuted according to some special mode, as in the case of proceedings commenced without a summons, and prosecuted without regular pleadings, which are characteristic of ordinary actions.\u2019\nId. at 321, 325 S.E. 2d at 2 (quoting 1 C.J.S., Actions, Section 42 (1936-Supp. 1984)).\nThe Court in Mechanic concluded that since the rights sought to be enforced under G.S. 45-21.1 et seq. were instituted by filing a notice instead of a complaint and summons and were prosecuted without regular pleadings, they were properly characterized as \u201cspecial\u201d proceedings.\nLikewise, in the case sub judice, a revocation hearing pursuant to G.S. 28A-9-1 is instituted by filing notice instead of a complaint and summons, and is prosecuted without regular pleadings. We also conclude that this procedure should be characterized as a \u201cspecial proceeding\u201d for the purpose of applying Rule 17. We therefore affirm the Clerk\u2019s action in appointing a guardian ad litem.\nII.\nWe turn now to the issue of the Clerk\u2019s authority to tax the costs of the guardian ad litem\u2019s attorney fee to the estate. The administratrix contends that there is no authority for such action. We disagree for the reasons set forth below and affirm the trial court\u2019s decision.\nAs noted in the case of In re NCNB, 52 N.C. App. 353, 278 S.E. 2d 330, disc. rev. denied, 303 N.C. 544, 281 S.E. 2d 393 (1981), counsel fees are not recoverable as a part of costs except where provided by law which means either by statutory authority or by virtue of case law sanctioning such recovery.\nUnder both G.S. 7A-306 governing \u201cCosts in special proceedings\u201d and G.S. 7A-307 governing \u201cCosts in administration of estates,\u201d the court is authorized to tax as costs both counsel fees and fees for a guardian ad litem \u201cas provided by law.\u201d Under G.S. 7A-103\u00dc1) dealing with the powers of a clerk of superior court, a clerk can \u201c[a]ward costs ... as prescribed by law, to be paid . . . out of the estate ... in any proceeding before him.\u201d Therefore, there is ample authority for the Clerk\u2019s action in the case sub judice if such action is authorized either by statute or by case law.\nSince there is no specific statutory authority for either counsel fees or guardian ad litem fees in this type of case to be taxed as costs, we must rely on prior decisions of our courts. To this extent, we can find authority for the Clerk\u2019s action in In re Stone, 176 N.C. 336, 97 S.E. 216 (1918), where the issue before the Court was an award of attorney\u2019s fees due to the attorney 'hired by the minor\u2019s \u201cnext friend.\u201d The Court noted:\nThe prochein ami, or next friend, is appointed by the court to protect the infant\u2019s rights. It is essential that he have the assistance of counsel learned in the law. The infant has no power to contract as to fees, and in most cases is too young to understand such matters. Referring to the duty of the court in respect to infants, in Tate v. Mott, 96 N.C. 23, Judge Merrimon says: \u2018The infant is in an important sense under the protection of the court; it is careful of his rights, and will in a proper case interfere in his behalf and take, and direct to be taken, all proper steps in the course of the action for the protection of his rights and interests.\u2019\nIt would be very singular that the Courts should assume the duty of seeing that all steps are taken to protect the infant\u2019s rights and yet deny to themselves the power to compel the payment of the necessary expenses out of the infant\u2019s estate recovered in the cause.\nId. at 338, 97 S.E. at 217.\nAdditional authority for this proposition can be found in In Re Will of Howell, 204 N.C. 437, 168 S.E. 671 (1933).\nIt is true, that in the exercise of chancery powers, or by express statute, the court may make an allowance for attorney\u2019s fees as reasonable expenses incurred by a personal representative, trustee, or person appointed by the court for a particular purpose, as next friend or guardian ad litem for an infant or insane person. In such cases the amount to be paid does not depend upon the agreement of the parties, but is within the control of the court.\nId. at 438, 168 S.E. at 672.\nIn the case before us, the Clerk upon his own motion, sought to have the administratrix of the estate removed. Since the minor heirs clearly had a vested interest and the right of appeal from the Clerk\u2019s determination, the Clerk took the appropriate and proper step of appointing a guardian ad litem to protect their interests. To say as in Stone that the Clerk properly assumed the duty of seeing that all steps were taken to protect the minors\u2019 rights, but was powerless to compel the payment of the necessary expenses from the estate to which the heirs would potentially benefit, would indeed be \u201csingular\u201d and a detriment to the,proper administration of justice and the protection of minors.\nThe decision of the trial court is\nAffirmed.\nChief Judge HEDRICK and Judge ARNOLD concur.", "type": "majority", "author": "ORR, Judge." } ], "attorneys": [ "James, McElroy & Diehl, P.A., by Robert H. Sheppard and P. Kevin Carwile, for administratrix-appellant.", "John F. Rudisill, Guardian Ad Litem for William L. Sturman, Jr. and Mary Lura Sturman, Minor Heirs of the Estate of William L. Sturman." ], "corrections": "", "head_matter": "IN THE MATTER OF: THE ESTATE OF WILLIAM L. STURMAN, Deceased\nNo. 8826DC635\n(Filed 18 April 1989)\n1. Infants \u00a7 9\u2014 revocation of letters testamentary \u2014 appointment of guardian ad litem for deceased\u2019s children \u2014 no error\nThe Clerk of Superior Court had statutory authority to appoint a guardian ad litem for the minor heirs of the Sturman estate in a proceeding for the revocation of the letters testamentary of the administratrix. A revocation hearing should be characterized as a special proceeding for the purposes of applying N.C.G.S. \u00a7 1A-1, Rule 17 because the hearing is initiated by filing notice instead of a complaint and summons and is prosecuted without regular pleadings; Rule 17 provides for the appointment of a guardian ad litem in actions or special proceedings where a party is either a plaintiff or defendant. The minor heirs clearly had a vested interest in who administered the estate of their deceased father and were entitled under N.C.G.S. \u00a7 28A-9-1 to appeal the decision of the Clerk on the revocation issue.\n2. Attorneys at Law \u00a7 7.5\u2014 guardian ad litem \u2014attorney fee taxed to estate \u2014no error\nThe Clerk of Superior Court did not err by taxing the costs of the guardian ad litem\u2019s attorney fee to the estate where the Clerk upon his own motion sought to have the administratrix of the estate removed; the minor heirs clearly had a vested interest and the right of appeal from the Clerk\u2019s determination; and the Clerk took the appropriate and proper step of appointing a guardian ad litem to protect their interests.\nAPPEAL by administratrix-appellant from Boner (Richard DJ, Judge. Order entered 13 January 1988 in Superior Court, MECKLEN-BURG County. Heard in the Court of Appeals 13 December 1988.\nOn 20 December 1984, Janis H. Sturman was appointed ad-ministratrix of her husband\u2019s estate. During the course of her administration, Mrs. Sturman received an order from the Assistant Clerk to appear and show cause why she should not be removed as the administratrix. This proceeding was initiated by the Clerk ex mero motu.\nOn 6 April 1987, John F. Rudisill, a licensed attorney, was appointed by the Clerk of Court as guardian ad litem of the minor heirs of the Sturman estate. He was appointed for the purpose of representing their interests at the hearing and subsequent appeal involving the petition to remove the administratrix. Rudisill replaced another attorney who had been the minor heirs\u2019 guardian ad litem for the purpose of the sale of the estate\u2019s real property. See G.S. 28A-9-1 (1984).\nThe Assistant Clerk of Superior Court issued an order on 22 June 1987 revoking the letters testamentary of the administratrix pursuant to G.S. 28A-9-1. The matter was appealed to Superior Court where the Clerk\u2019s order was reversed.\nOn 9 October 1987, Rudisill filed a petition for legal fees as guardian ad litem in the amount of $3,917.85. On 14 October 1987, the Assistant Clerk of Superior Court entered an order allowing the fees. The administratrix filed exceptions to this order which was affirmed by the Superior Court.\nThe administratrix claims on appeal that the Clerk of Superior Court did not have the power to appoint a guardian ad litem in a probate matter. Further, the administratrix claims that even if the Clerk did have the authority to appoint a guardian ad litem, the Clerk did not have the power to order the administratrix to pay the attorney\u2019s fees out of the decedent\u2019s estate.\nJames, McElroy & Diehl, P.A., by Robert H. Sheppard and P. Kevin Carwile, for administratrix-appellant.\nJohn F. Rudisill, Guardian Ad Litem for William L. Sturman, Jr. and Mary Lura Sturman, Minor Heirs of the Estate of William L. Sturman." }, "file_name": "0473-01", "first_page_order": 503, "last_page_order": 508 }