I.General Consideration

Editor’s Note. —

Many of the cases below were decided under former Chapter 28 or law prior thereto.

History of Clerk’s Authority as Judge of Probate. —

See In re Estate of Lowther, 271 N.C. 345 , 156 S.E.2d 693, 1967 N.C. LEXIS 1195 (1967).

Jurisdiction Statutory. —

The jurisdiction of clerks of court with reference to the administration of estates of deceased persons is altogether statutory, and the clerk’s special probate jurisdiction is separate and distinct from his general duties and jurisdiction as clerk. In re Estate of Lowther, 271 N.C. 345 , 156 S.E.2d 693, 1967 N.C. LEXIS 1195 (1967).

Jurisdiction Distinct and Separate from General Duties. —

Under this section the duties of the probate judge devolve upon the clerk of the superior court, and in such case he has a special jurisdiction which is distinct and separate from his general duties as clerk. Brittain v. Mull, 91 N.C. 498 , 1884 N.C. LEXIS 105 (1884); Helms v. Austin, 116 N.C. 751 , 21 S.E. 556, 1895 N.C. LEXIS 274 (1895).

Jurisdiction Exclusive. —

Jurisdiction to appoint an administrator of a deceased person, who has died intestate, and to issue letters for the administration of his estate is conferred by this section exclusively upon the clerk of the superior court of the county in which decedent was domiciled at or immediately previous to his death. Central Bank & Trust Co. v. Board of Comm'rs, 195 N.C. 678 , 143 S.E. 252, 1928 N.C. LEXIS 181 (1928).

This section confers upon the clerk of the superior court exclusive and original jurisdiction of proceedings for the probate of wills. Brissie v. Craig, 232 N.C. 701 , 62 S.E.2d 330, 1950 N.C. LEXIS 635 (1950); Morris v. Morris, 245 N.C. 30 , 95 S.E.2d 110, 1956 N.C. LEXIS 527 (1956).

Sections 28A-2-1 through 28A-2-3, as did the former law, vest in the clerk of superior court exclusive jurisdiction of the probate of wills, administration, settlement and distribution of the decedents’ estates, the granting of letters, testamentary and of administration, or other letters of authority. Unlike the former law, the jurisdiction of the clerk is no longer limited by such considerations as where the decedent died, left property or was domiciled. In re Estate of Adamee, 291 N.C. 386 , 230 S.E.2d 541, 1976 N.C. LEXIS 998 (1976).

Except for situations in which the clerk is disqualified to act, G.S. 28A-2-3 , the clerk’s probate jurisdiction is original and exclusive, and a superior court judge may hear such cases only upon appeal from the clerk. Beck v. Beck, 36 N.C. App. 774, 245 S.E.2d 199, 1978 N.C. App. LEXIS 2625 (1978).

In this State, the clerk is given exclusive original jurisdiction of the administration, settlement and distribution of estates except in cases where the clerk is disqualified to act. In re Estate of Snipes, 45 N.C. App. 79, 262 S.E.2d 292, 1980 N.C. App. LEXIS 2582 (1980).

Although G.S. 7A-241 provides that exclusive original jurisdiction in probate matters is vested in the “superior court division,” this section specifies that the clerk is given exclusive original jurisdiction in the administration of decedents’ estates except in cases where the clerk is disqualified to act. In re Estate of Longest, 74 N.C. App. 386, 328 S.E.2d 804, 1985 N.C. App. LEXIS 3506 (1985).

Not Affected by Loss or Destruction of Will Before Probate. —

The clerk of the superior court has exclusive original jurisdiction to take proofs of wills of persons dying domiciled within his county, and the jurisdiction of the clerk to take proof of a particular will is not affected by its loss or destruction before probate. Anderson v. Atkinson, 234 N.C. 271 , 66 S.E.2d 886, 1951 N.C. LEXIS 440 (1951). See Anderson v. Atkinson, 235 N.C. 300 , 69 S.E.2d 603, 1952 N.C. LEXIS 387 (1952); In re Will of Wood, 240 N.C. 134 , 81 S.E.2d 127, 1954 N.C. LEXIS 638 (1954).

Later Discovery of Another Document. —

Where the clerk of a county had authority, upon proper application and proof, to admit a document to probate as a will, through the exercise of such authority by the admission of the documents to probate, his jurisdiction over the estate becomes exclusive. The subsequent discovery and presentation for probate of another document, executed later, as the last will of the decedent, would not deprive that clerk of the exclusive jurisdiction previously so acquired. In re Estate of Davis, 277 N.C. 134 , 176 S.E.2d 825, 1970 N.C. LEXIS 558 (1970).

Exclusive Jurisdiction to Appoint Administrators Lies with Clerk of Superior Court. —

A superior court judge lacks jurisdiction to appoint an administrator, because the original and exclusive jurisdiction to appoint administrators lies with the clerk of superior court. Brace v. Strother, 90 N.C. App. 357, 368 S.E.2d 447, 1988 N.C. App. LEXIS 521 (1988), disapproved, Ragan v. Hill, 337 N.C. 667 , 447 S.E.2d 371, 1994 N.C. LEXIS 487 (1994).

Dispute Over Settlement Agreement Not An Estate Matter. —

When petitioner on appeal from an order of the clerk of superior court attacked a prior court decision, there was no merit to her claim that the prior decision was void for lack of subject matter jurisdiction; the trial court had not been addressing an estate matter under G.S. 28A-2-1 but determining whether there were issues of fact about the terms of a settlement agreement following a mediation; it had jurisdiction under G.S. 7A-240 to do this, as it later had jurisdiction to enforce a settlement agreement reached by the parties. In re Estate of Whitaker, 179 N.C. App. 375, 633 S.E.2d 849, 2006 N.C. App. LEXIS 1902 (2006).

Powers and Jurisdiction of Independent Tribunal. —

The powers and jurisdiction exercised by the clerk pursuant to this section are not those of a servant or ministerial officer or exercised as and for the superior court, but those of an independent tribunal of original jurisdiction. Edwards v. Cobb, 95 N.C. 4 , 1886 N.C. LEXIS 193 (1886).

The clerk acts not as the servant or ministerial officer of the superior court or as and for the court, but as an independent tribunal of original jurisdiction. Edwards v. Cobb, 95 N.C. 4 , 1886 N.C. LEXIS 193 (1886).

The clerk of the superior court is an independent tribunal of original jurisdiction in the exercise of his probate jurisdiction. In re Will of Hine, 228 N.C. 405 , 45 S.E.2d 526, 1947 N.C. LEXIS 333 (1947).

The authority to probate a will is vested in the clerk of the superior court, and in the exercise of his probate jurisdiction, the clerk is an independent tribunal of original jurisdiction. In re Will of Spinks, 7 N.C. App. 417, 173 S.E.2d 1, 1970 N.C. App. LEXIS 1705 (1970).

Action of Clerk Stands as That of Court. —

The exercise of judicial powers by the “clerk of the court” is the exercise of them by the “court” through the clerk; and the action of the clerk stands as that of the court, if not excepted to and reversed or modified on appeal. Brittain v. Mull, 91 N.C. 498 , 1884 N.C. LEXIS 105 (1884).

Jurisdiction Over Wrongful Death Proceeds. —

Although the trial court found that decedent’s wrongful death proceeds were not assets of the estate, the clerk retained authority to oversee the distribution of the proceeds as a result of its power to order an accounting of estate assets, to remove the defendant as the estate’s personal representative, to impose sanctions against defendant’s based upon alleged misconduct concerning the proceeds, and to order the proceeds submitted to the clerk or public administrator; although wrongful death actions may not yield assets for the estate, a personal representative’s authority to commence and settle these actions is “incident to the collection, preservation, liquidation [and] distribution of a decedent’s estate.” In re Estate of Parrish, 143 N.C. App. 244, 547 S.E.2d 74, 2001 N.C. App. LEXIS 272 (2001).

Summary Proceedings. —

The proceedings of the clerk in respect to the exercise of his probate jurisdiction are summary in their nature. Edwards v. Cobb, 95 N.C. 4 , 1886 N.C. LEXIS 193 (1886).

The word “jurisdiction” in this section is used in the sense of assigning original authority to the clerk. In re Estate of Adamee, 28 N.C. App. 229, 221 S.E.2d 370, 1976 N.C. App. LEXIS 2655 , rev'd, 291 N.C. 386 , 230 S.E.2d 541, 1976 N.C. LEXIS 998 (1976).

Word “jurisdiction” was not intended to change vesting of concurrent jurisdiction in clerk and superior court under G.S. 7A-241 . In re Estate of Adamee, 28 N.C. App. 229, 221 S.E.2d 370, 1976 N.C. App. LEXIS 2655 , rev'd, 291 N.C. 386 , 230 S.E.2d 541, 1976 N.C. LEXIS 998 (1976).

Derivative Jurisdiction of Judge. —

In most instances the superior court judge’s probate jurisdiction is, in effect, that of an appellate court, because his jurisdiction is derivative and not concurrent. In re Estate of Longest, 74 N.C. App. 386, 328 S.E.2d 804, 1985 N.C. App. LEXIS 3506 (1985).

Allocation of Jurisdiction Between Clerk and Judge. —

Section 7A-241 does not say that concurrent jurisdiction in probate matters is vested in the clerk and the judge of the superior court. It says that probate jurisdiction is vested in the superior court division to be exercised by the superior court and the clerk according to the practice and procedure provided by law. The law, that is, the statutes specifying this practice and procedure, has allocated the jurisdiction between the clerk and the judge. By this section the clerk is given exclusive original jurisdiction of “the administration, settlement and distribution of estates of decedents” except in cases where the clerk is disqualified to act under G.S. 28A-2-3 . When the clerk is disqualified to exercise his jurisdiction, the judge has equal authority to perform the clerk’s probate duties and, in that sense, he exercises concurrent jurisdiction of probate matters. In all other instances, however, the judge’s probate jurisdiction is, in effect, that of an appellate court pursuant to G.S. 7A-251 . In re Estate of Adamee, 291 N.C. 386 , 230 S.E.2d 541, 1976 N.C. LEXIS 998 (1976).

G.S. 7A-241 Supports Assignment of Original Authority. —

The assignment of original authority of probate matters to the clerk in this section is supported by, and not contravened by, G.S. 7A-241 . In re Estate of Adamee, 28 N.C. App. 229, 221 S.E.2d 370, 1976 N.C. App. LEXIS 2655 , rev'd, 291 N.C. 386 , 230 S.E.2d 541, 1976 N.C. LEXIS 998 (1976).

G.S. 1-276 [see now G.S. 1-301.1 et seq.] Inapplicable on Appeal to Superior Court. —

Upon appeal from action taken by the clerk of the superior court, in the exercise of his probate jurisdiction, the jurisdiction of the superior court is derivative, and the provisions of G.S. 1-276 [see now G.S. 1-301.1 et seq.] are not applicable. In re Will of Spinks, 7 N.C. App. 417, 173 S.E.2d 1, 1970 N.C. App. LEXIS 1705 (1970).

Procedure on Appeal from Order of Clerk. —

In an appeal from an order of the clerk in a probate matter, the superior court is not required to conduct a de novo hearing. Rather, when a finding of fact by the clerk of court is properly challenged by specific exception, the superior court judge will review those findings, and either affirm, reverse, or modify them. If he deems it advisable, he may submit the issue to a jury, which course he could not follow without hearing evidence. In re Estate of Longest, 74 N.C. App. 386, 328 S.E.2d 804, 1985 N.C. App. LEXIS 3506 (1985).

Action for Breach of Duties, Negligence, and Fraud in Administration of Estate. —

In plaintiff’s action to recover for breach of fiduciary duties, negligence, and fraud arising from administration of her husband’s estate and a trust created under his will, dismissal for want of subject matter jurisdiction on the ground that the claims alleged should be brought initially before the clerk was improper, since the claims were “justiciable matters of a civil nature,” original general jurisdiction over which was vested in the trial division, and though the claims arose from administration of an estate, their resolution was not a part of the administration, settlement, or distribution thereof so as to make jurisdiction properly exercisable initially by the clerk; moreover, inclusion by plaintiff in her complaint of matters of which should have been brought initially before the clerk did not require dismissal for want of subject matter jurisdiction of the entire action. Ingle v. Allen, 53 N.C. App. 627, 281 S.E.2d 406, 1981 N.C. App. LEXIS 2701 (1981); Ingle v. Allen, 69 N.C. App. 192, 317 S.E.2d 1, 1984 N.C. App. LEXIS 3405 (1984).

Clerk Had Jurisdiction. —

North Carolina letters of administration were valid when issued by a clerk for a county under G.S. 28A-6-1(a), as an ancillary administration was later commenced in another state; thus, the clerk had jurisdiction over the estate under G.S. 28A-2-1 . In re Estate of Severt, 194 N.C. App. 508, 669 S.E.2d 886, 2008 N.C. App. LEXIS 2240 (2008).

Clerk Had Jurisdiction. —

Judgment granting defendant administrator’s motion to dismiss for lack of subject matter jurisdiction over the declaratory judgment action was affirmed where (1) plaintiff’s action involved claims for offsets against certain creditors’ claims against the estate and her assertions that various claims by creditors were collectable from the Family Trust; (2) plaintiff also sought protection of her contributions to the Family Trust and contended that the estate’s assets should be marshaled by defendant so that he could provide an accounting; and (3) these issues were “a part of” the administration of the estate and were thus properly handled by the clerk. Livesay v. Carolina First Bank, 200 N.C. App. 306, 683 S.E.2d 453, 2009 N.C. App. LEXIS 1626 (2009).

Clerk Had No Jurisdiction Over Property. —

Pertinent parts of an estate order were void and had no legal effect on a foreclosure action because the clerk of court had no jurisdiction over the property which was not part of an estate and a court erred in ordering that a deed of trust, which secured property outside the estate, was cancelled. In re Foreclosure of the Deed of Trust from Manning, 228 N.C. App. 591, 747 S.E.2d 286, 2013 N.C. App. LEXIS 813 (2013).

II.Probate of Wills

Editor’s Note. —

Many of the cases below were decided under former Chapter 28 or law prior thereto.

Original Jurisdiction Vested in Clerk. —

Original jurisdiction of proceedings to probate a will is vested in the clerk. In re Will of Belvin, 261 N.C. 275 , 134 S.E.2d 225, 1964 N.C. LEXIS 440 (1964).

Probate May Not Be Denied on Ground Involving Construction. —

The clerk has no right to exclude any part of a will from probate on any ground which involves the construction of the will where testamentary intent is disclosed. Ravenel v. Shipman, 271 N.C. 193 , 155 S.E.2d 484, 1967 N.C. LEXIS 1175 (1967).

Existence of Will Cannot Be Determined in Ordinary Civil Action. —

The issue of whether an unprobated script is, or is not, a man’s last will cannot be properly brought before the superior court for determination in an ordinary civil action. Anderson v. Atkinson, 234 N.C. 271 , 66 S.E.2d 886, 1951 N.C. LEXIS 440 (1951). See Anderson v. Atkinson, 235 N.C. 300 , 69 S.E.2d 603, 1952 N.C. LEXIS 387 (1952).

Unless Answer Denies Averment That Script Offered Is Decedent’s Will. —

Where the respondents filed answer denying the petitioner’s averment that the script offered for probate was the last will and testament of the decedent, such denial raised an issue of devisavit vel non and necessitated transfer of the cause to the civil issue docket for trial by jury, in accordance with G.S. 1-273 [see now G.S. 1-301.1 et seq.]. This being so, jurisdiction to determine the whole matter in controversy, as well as the issue of devisavit vel non, passed to the superior court in term by authority of G.S. 1-276 [see now G.S. 1-301.1 et seq.]. In re Will of Wood, 240 N.C. 134 , 81 S.E.2d 127, 1954 N.C. LEXIS 638 (1954).

Dissent to Will. —

The right, time and manner, and effect of the filing and recording of a dissent to a will are all matters within the probate jurisdiction of the clerk. In re Estate of Snipes, 45 N.C. App. 79, 262 S.E.2d 292, 1980 N.C. App. LEXIS 2582 (1980).

Exclusive original jurisdiction to determine the validity of a dissent by a surviving spouse to a will of a deceased spouse lies with the clerk of superior court. Greene v. Lynch, 51 N.C. App. 665, 277 S.E.2d 454, 1981 N.C. App. LEXIS 2291 (1981).

Power to Set Aside Probate. —

The clerk of the superior court has the power to set aside a probate of a will in common form in a proper case. This power can be exercised by the clerk where it is clearly made to appear that the adjudication and orders have been improvidently granted or that the court was imposed upon or misled as to the essential and true conditions existent in a given case. However, this power of the clerk does not extend to the setting aside of the probate of a will in common form upon grounds which should be raised by caveat. In re Will of Spinks, 7 N.C. App. 417, 173 S.E.2d 1, 1970 N.C. App. LEXIS 1705 (1970).

Procedure Where Jurisdictional Requirements Lacking. —

When jurisdictional requirements for probate are shown to be lacking, the clerk may revoke his order admitting the document to probate. In re Estate of Davis, 277 N.C. 134 , 176 S.E.2d 825, 1970 N.C. LEXIS 558 (1970).

Motion to Set Aside Probate. —

Since the clerk of the superior court of each county has original and exclusive jurisdiction of proceedings to probate a will, he is the tribunal to which a motion is properly made to set aside the probate of a purported will — or part thereof — for any inherent and fatal defect appearing upon the face of the instrument. Ravenel v. Shipman, 271 N.C. 193 , 155 S.E.2d 484, 1967 N.C. LEXIS 1175 (1967).

Clerk May Vacate Order Admitting Will to Probate. —

The clerk of the superior court, in his probate jurisdiction, has the power to vacate a previous order admitting a will to probate in common form on motion aptly made, when it is clearly made to appear that the order of probate was improvidently granted, or that the court had been imposed upon and misled as to the essential and true conditions of the case. In re Smith's Will, 218 N.C. 161 , 10 S.E.2d 676, 1940 N.C. LEXIS 111 (1940).

The burden of proof on a motion to vacate a probate is on the movants to establish sufficient grounds to set aside the probate. In re Will of Spinks, 7 N.C. App. 417, 173 S.E.2d 1, 1970 N.C. App. LEXIS 1705 (1970).

III.Letters Testamentary and of Administration

Editor’s Note. —

Many of the cases below were decided under former Chapter 28 or law prior thereto.

Jurisdiction Invoked by Petition. —

The jurisdiction of the clerk as probate judge is invoked by petition disclosing the requisite jurisdictional facts filed by some person entitled to qualify as executor or administrator. In re Estate of Pitchi, 231 N.C. 485 , 57 S.E.2d 649, 1950 N.C. LEXIS 472 (1950).

When Jurisdiction Presumed. —

Where it is admitted that the plaintiff was regularly appointed administrator, it will be presumed that the clerk acted within his jurisdiction. Vance v. Southern R.R., 138 N.C. 460 , 50 S.E. 860, 1905 N.C. LEXIS 283 (1905).

Authority to Appoint Administrator Is Limited. —

See In re Scarborough, 261 N.C. 565 , 135 S.E.2d 529, 1964 N.C. LEXIS 516 (1964).

More Than One Appointment. —

When letters of administration are once issued to a person who qualified, the powers of the clerk in that respect are exhausted and the subsequent appointment of another person, before the first appointment is revoked, is void. In re Bowman's Estate, 121 N.C. 373 , 28 S.E. 404, 1897 N.C. LEXIS 244 (1897).

The burden of proof to show jurisdictional facts rests upon the person applying for letters. Reynolds v. Lloyd Cotton Mills, 177 N.C. 412 , 99 S.E. 240, 1919 N.C. LEXIS 143 (1919).

May Adjudge Person Dead After Absence for Seven Years. —

While the death of intestate must be established as a jurisdictional fact to empower the clerk of the superior court to issue letters of administration, the clerk may, upon evidence that a person has been absent from his domicile for seven years without being heard from by those who would be expected to hear from him, if living, adjudge that such person is dead and appoint an administrator of his estate. Carter v. Lilley, 227 N.C. 435 , 42 S.E.2d 610, 1947 N.C. LEXIS 453 (1947).

Amendment to Substitute Proper Party Relates Back. —

Under G.S. 1A-1 , Rule 15(a) and (c) and G.S. 1A-1 , Rule 17(a), a lack of letters of administration may be cured, and an objection to want of capacity to sue may be avoided by amendment or by substitution of the proper party at any time before hearing. Later appointments of this nature will relate back and validate the proceedings from the beginning regardless of the statute of limitations. McNamara v. Kerr-McGee Chem. Corp., 328 F. Supp. 1058, 1971 U.S. Dist. LEXIS 12476 (E.D.N.C. 1971).

Where a complaint to recover damages under a state wrongful death act was timely filed by an ancillary administrator appointed by a state court without jurisdiction to do so, the complaint could be amended under G.S. 1A-1 , Rule 17(a) at a time when a new suit would be barred so as to allege the subsequent effective appointment of the same person as ancillary administrator by a state court having jurisdiction. McNamara v. Kerr-McGee Chem. Corp., 328 F. Supp. 1058, 1971 U.S. Dist. LEXIS 12476 (E.D.N.C. 1971).

Petition for Authority to Operate Estate’s Farm. —

Although the clerks of the superior courts have no equity jurisdiction, they are given probate jurisdiction by this section, and in the exercise of their probate jurisdiction they may hear and rule on a petition of an executor for authorization to operate the estate’s farms to preserve the property pending the determination of caveat proceedings. C.L. Hardy & Co. v. Turnage, 204 N.C. 538 , 168 S.E. 823, 1933 N.C. LEXIS 190 (1933).

Removal of Executors and Administrators. —

The clerks of superior courts have jurisdiction of proceedings for the removal of executors and administrators. Edwards v. Cobb, 95 N.C. 4 , 1886 N.C. LEXIS 193 (1886).

Direct Attack on Validity of Appointment. —

The validity of the appointment of an administrator may not be collaterally attacked in an action against such administrator, but may be directly attacked by any person in interest, including an administratrix of the decedent appointed in another state, by motion before the clerk of the superior court who made the appointment to vacate and set aside the letters of administration theretofore issued by such clerk. King v. Snyder, 269 N.C. 148 , 152 S.E.2d 92, 1967 N.C. LEXIS 1036 (1967).

Collateral Attack. —

When the clerk under this section has general jurisdiction of the subject matter of the inquiry, a decree appointing an executor or administrator may not be collaterally attacked. Fann v. North Carolina R.R., 155 N.C. 136 , 71 S.E. 81, 1911 N.C. LEXIS 365 (1911); Batchelor v. Overton, 158 N.C. 395 , 74 S.E. 20, 1912 N.C. LEXIS 57 (1912); Tyer v. J.B. Blades Lumber Co., 188 N.C. 268 , 124 S.E. 305, 1924 N.C. LEXIS 51 (1924). See Vance v. Southern R.R., 138 N.C. 460 , 50 S.E. 860, 1905 N.C. LEXIS 283 (1905).

Where jurisdictional facts are lacking, a decree appointing an executor or administrator can be collaterally attacked. Reynolds v. Lloyd Cotton Mills, 177 N.C. 412 , 99 S.E. 240, 1919 N.C. LEXIS 143 (1919). See Vance v. Southern R.R., 138 N.C. 460 , 50 S.E. 860, 1905 N.C. LEXIS 283 (1905).

The facts very generally recognized as jurisdictional are stated in this section, and where, on application for letters of administration, these facts appear of record, the question of the qualification of the appointee cannot be collaterally assailed. Wharton v. New York Life Ins. Co., 178 N.C. 135 , 100 S.E. 266, 1919 N.C. LEXIS 408 (1919).

The only exception to the rule that the question of the qualification of the appointee cannot be collaterally assailed where facts very generally recognized as jurisdictional appear of record is that it may be shown collaterally that the person for whom an administrator has been appointed is not in fact dead, but is still living. Hines v. Foundation Co., 196 N.C. 322 , 145 S.E. 612, 1928 N.C. LEXIS 361 (1928).

Where the person for whom an administrator has been appointed is not in fact dead, but is still living, the order making the appointment is void, and it may be attacked collaterally. Holmes v. Wharton, 194 N.C. 470 , 140 S.E. 93, 1927 N.C. LEXIS 130 (1927) (citing) Clark v. Carolina Homes, 189 N.C. 703 , 128 S.E. 20, 1925 N.C. LEXIS 385 (1925).

A clerk has jurisdiction to appoint an administrator where the affidavit of the applicant presumes the death of the decedent from his absence of seven years and the lack of communication from him. The order and appointment can only be avoided by showing the person not to be in fact dead. Chamblee v. Security Nat'l Bank, 211 N.C. 48 , 188 S.E. 632, 1936 N.C. LEXIS 399 (1936).

Administrator Defending Wrongful Death Action Estopped to Deny Validity of Appointment. —

An administrator appointed in this State who undertakes to defend an action for wrongful death by moving to set aside a default judgment and filing answer is thereafter estopped to deny the validity of his own appointment, and the court correctly denies his motion to dismiss the action for lack of jurisdiction of his person or the estate. The validity of his appointment is not before the court, and it is error for the court to find facts in regard thereto. King v. Snyder, 269 N.C. 148 , 152 S.E.2d 92, 1967 N.C. LEXIS 1036 (1967).

I.General Consideration

Editor’s Note. —

Many of the cases below were decided under former Chapter 28 or law prior thereto.

Citizenship of Beneficiaries Controls in Diversity Action. —

In determining the presence of diversity of citizenship when state law requires that an action be prosecuted in the name of a resident administrator, the citizenship of the beneficiaries, rather than that of the administrator, is relevant. Miller v. Perry, 456 F.2d 63, 1972 U.S. App. LEXIS 11370 (4th Cir. 1972).

Venue of a proceeding in the nature of a creditor’s supplemental proceeding under G.S. 1-307 , in which in order to issue an execution on defendant’s interest under his father’s will, the trial judge was required to find only that defendant possessed some interest under his father’s will, was governed by G.S. 1-307 , and not by this section. North Carolina Nat'l Bank v. C.P. Robinson Co., 319 N.C. 63 , 352 S.E.2d 684, 1987 N.C. LEXIS 1824 (1987).

II.Domicile in State

Editor’s Note. —

Many of the cases below were decided under former Chapter 28 or law prior thereto.

The will of a resident of this State should be probated in the county of his domicile. In re Marks' Will, 259 N.C. 326 , 130 S.E.2d 673, 1963 N.C. LEXIS 568 (1963).

Grant in Any Other County Void. —

Where decedent had a residence in this State, a grant in any county other than that in which he resided is absolutely void. Johnson v. Corpenning, 39 N.C. 216 , 1845 N.C. LEXIS 101 (1845).

Domicile at death in county of clerk who undertakes probate is essential to jurisdiction. In re Estate of Davis, 277 N.C. 134 , 176 S.E.2d 825, 1970 N.C. LEXIS 558 (1970).

Domicile. —

For an excellent discussion of “domicile” as distinguished from “residence,” “inhabiting,” etc. See Reynolds v. Lloyd Cotton Mills, 177 N.C. 412 , 99 S.E. 240, 1919 N.C. LEXIS 143 (1919). See also In re Estate of Cullinan, 259 N.C. 626 , 131 S.E.2d 316, 1963 N.C. LEXIS 599 (1963).

Change of County Lines. —

The county referred to in this section is the county at the time of the death of the decedent, and not the one subsequently formed by a change of county lines. Hannon v. Southern Power Co., 173 N.C. 520 , 92 S.E. 353, 1917 N.C. LEXIS 336 (1917).

Collateral Attack on Appointment. —

An order appointing an administrator cannot be collaterally attacked on grounds that deceased was not domiciled in the county of the clerk. Holmes v. Wharton, 194 N.C. 470 , 140 S.E. 93, 1927 N.C. LEXIS 130 (1927).

III.No Domicile in State

Editor’s Note. —

Many of the cases below were decided under former Chapter 28 or law prior thereto.

Assets Sufficient to Convey Jurisdiction. —

If the assets are bona notabilia (chattels or goods of sufficient value to be accounted for), they are sufficient to convey jurisdiction to the clerk. Hyman v. Gaskins, 27 N.C. 267 , 1844 N.C. LEXIS 122 (1844).

Will of Nonresident May Be Probated Where Property Situated. —

When the will of a nonresident dying outside the State disposes of property in the State, the will may be offered for original probate before the clerk of the county in which the property is situated. In re Marks' Will, 259 N.C. 326 , 130 S.E.2d 673, 1963 N.C. LEXIS 568 (1963).

The term “asset” includes intangibles. In re Edmundson, 273 N.C. 92 , 159 S.E.2d 509, 1968 N.C. LEXIS 562 (1968).

The time and manner of bringing the assets into the jurisdiction are immaterial. Shields v. Union Cent. Life Ins. Co., 119 N.C. 380 , 25 S.E. 951, 1896 N.C. LEXIS 294 (1896).

Automobile Liability Insurance Policy Is Asset. —

A policy of automobile liability insurance issued in the name of the deceased by an insurer qualified to do business in this State or otherwise subject to service of process is an asset so as to support the appointment of an ancillary administrator. In re Edmundson, 273 N.C. 92 , 159 S.E.2d 509, 1968 N.C. LEXIS 562 (1968).

Cause of Action for Death by Wrongful Act as Sufficient Asset. —

Where a nonresident is killed in this State, the cause of action for death by wrongful act is sufficient under this section as a basis for the grant of letters in the county where the injury and death occurred. Vance v. Southern R.R., 138 N.C. 460 , 50 S.E. 860, 1905 N.C. LEXIS 283 (1905); Fann v. North Carolina R.R., 155 N.C. 136 , 71 S.E. 81, 1911 N.C. LEXIS 365 (1911).

Where death occurred as a result of a tort committed in this State, the cause of action given by the statutes of this State was an asset within the meaning of this section. In re Scarborough, 261 N.C. 565 , 135 S.E.2d 529, 1964 N.C. LEXIS 516 (1964).

Appointment of Administrator Authorized Although Only Asset Is Wrongful Death Claim. —

See In re Scarborough, 261 N.C. 565 , 135 S.E.2d 529, 1964 N.C. LEXIS 516 (1964).

Appointment of Ancillary Administrator. —

The fact that a personal representative can obtain a judgment in personam on a cause of action for wrongful death which arose in another state is sufficient to authorize the clerk of the superior court to appoint an ancillary administrator. In re Scarborough, 261 N.C. 565 , 135 S.E.2d 529, 1964 N.C. LEXIS 516 (1964).

I.General Consideration

II.Letters Testamentary

Editor’s Note. —

Some of the cases below were decided under former Chapter 28 or law prior thereto.

No conflict of interest is created by mere fact that executor also occupies status of creditor. Tyson v. North Carolina Nat'l Bank, 53 N.C. App. 189, 280 S.E.2d 478, 1981 N.C. App. LEXIS 2571 (1981), modified, 305 N.C. 136 , 286 S.E.2d 561, 1982 N.C. LEXIS 1250 (1982).

III.Letters of Administration

Editor’s Note. —

Some of the cases below were decided under former Chapter 28 or law prior thereto.

Right to administer on estate of an intestate is entirely statutory. In re Edwards' Estate, 234 N.C. 202 , 66 S.E.2d 675, 1951 N.C. LEXIS 420 (1951).

Selection Among Persons of Equal Degree. —

Where there are several persons entitled in equal degree to administer, the clerk may select the one who, in his discretion, is most fit. Garrison v. Cox, 95 N.C. 353 , 1886 N.C. LEXIS 272 (1886).

Next of Kin. —

As to right to administer of next of kin, under language of former statute, see Carthey v. Webb, 6 N.C. 268 , 1813 N.C. LEXIS 21 (1813); Moore v. Moore, 12 N.C. 352 , 1827 N.C. LEXIS 75 (1827); Stoker v. Kendall, 44 N.C. 242 , 1853 N.C. LEXIS 142 (1853); Atkins v. McCormick, 49 N.C. 274 , 1857 N.C. LEXIS 72 (1857); Little v. Berry, 94 N.C. 433 , 1886 N.C. LEXIS 77 (1886); In re Saville, 156 N.C. 172 , 72 S.E. 220, 1911 N.C. LEXIS 152 (1911); In re Edwards' Estate, 234 N.C. 202 , 66 S.E.2d 675, 1951 N.C. LEXIS 420 (1951).

For purposes of this section, “next of kin” refers to the class of blood relatives of the decedent; thus, the court erred in determining that the term was synonymous with “heirs,” as used in G.S. 41-6.1 . In re Estate of Bryant, 116 N.C. App. 329, 447 S.E.2d 468, 1994 N.C. App. LEXIS 907 (1994).

Effect of Appointment Out of Order. —

The appointment as administrator of a person other than the one designated by this section is not void, though the proper person has not renounced; but it may be set aside in favor of such proper person provided he has not waived his right to administer. Garrison v. Cox, 95 N.C. 353 , 1886 N.C. LEXIS 272 (1886).

Correction of Error in Appointment. —

Petitioner, an heir at law and beneficiary under will, had a higher preference of appointment than respondent, who was neither an heir nor a beneficiary, and as the respondent should not have been appointed administrator C.T.A. without notice to the petitioner, it was not error for the clerk to correct this error by removing the respondent as administrator C.T.A. The fact that petitioner may not have been qualified to serve as administrator C.T.A. under G.S. 28A-4-2(4) because she was a nonresident of this State who had not appointed a process agent was irrelevant. In re Estate of Cole, 80 N.C. App. 720, 343 S.E.2d 263, 1986 N.C. App. LEXIS 2249 (1986).

Estoppel Against Widow. —

Though the widow has a prior right to administration over a brother of the decedent, where it appears that at the time the letters were duly granted to the brother she had shown no disposition to set up her right before the clerk, the appointment of the brother will stand. Tyer v. J.B. Blades Lumber Co., 188 N.C. 268 , 124 S.E. 305, 1924 N.C. LEXIS 51 (1924).

Assignee After Death Not a Creditor. —

An assignment of debts of a person after his death does not make the assignee such a creditor as to entitle him to administer the estate of the deceased. Pearce v. Castrix, 53 N.C. 71 , 1860 N.C. LEXIS 159 (1860).

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, including the wife’s right to share in husband’s estate and her right to administer the estate, insofar as it remains executory. In re Estate of Adamee, 28 N.C. App. 229, 221 S.E.2d 370, 1976 N.C. App. LEXIS 2655 , rev'd, 291 N.C. 386 , 230 S.E.2d 541, 1976 N.C. LEXIS 998 (1976).

Possessor of Insurance Policy. —

The possession of a policy of life insurance authorizes the possessor to administer on the estate of the assured, a nonresident. Page v. Life Ins. Co., 131 N.C. 115 , 42 S.E. 543, 1902 N.C. LEXIS 248 (1902). See Shields v. Union Cent. Life Ins. Co., 119 N.C. 380 , 25 S.E. 951, 1896 N.C. LEXIS 294 (1896).

Any or all of the marital rights under this section may be surrendered by a properly drawn separation agreement complying with the requirements of former G.S. 52-6 . Lane v. Scarborough, 19 N.C. App. 32, 198 S.E.2d 45, 1973 N.C. App. LEXIS 1558 , rev'd, 284 N.C. 407 , 200 S.E.2d 622, 1973 N.C. LEXIS 874 (1973).

De Novo Hearing on Appeal. —

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. In re Estate of Adamee, 28 N.C. App. 229, 221 S.E.2d 370, 1976 N.C. App. LEXIS 2655 , rev'd, 291 N.C. 386 , 230 S.E.2d 541, 1976 N.C. LEXIS 998 (1976).

I.General Consideration

Editor’s Note. —

Many of the cases below were decided under former Chapter 28 or law prior thereto.

Testator has the right to name the person who shall administer his estate after his death, provided his designate is not disqualified by law. In re Estate of Moore, 292 N.C. 58 , 231 S.E.2d 849, 1977 N.C. LEXIS 1042 (1977).

Right of Person Named as Executor to Administer Estate. —

The person testator names as executor has the right to administer the estate. In re Estate of Moore, 292 N.C. 58 , 231 S.E.2d 849, 1977 N.C. LEXIS 1042 (1977).

When Right Ceases. —

He can be deprived of that right only by his refusal or neglect to probate the will or to take out letters, or by his inability or unsuitableness to execute the trust. In re Estate of Moore, 292 N.C. 58 , 231 S.E.2d 849, 1977 N.C. LEXIS 1042 (1977).

Statutory specifications of disqualifications for service as a personal representative cannot be superseded by the broad general policy of the law which gives effect to the desires of a testator and sees that his intentions are carried out so far as they can be ascertained. In re Estate of Moore, 292 N.C. 58 , 231 S.E.2d 849, 1977 N.C. LEXIS 1042 (1977).

Personal Interests Antagonistic to Estate as Grounds for Disqualification. —

When it appears that the personal interests of the prospective executor are so antagonistic to the interests of the estate and those entitled to its distribution that the same person cannot fairly represent both, the testator’s nominee is unsuitable and disqualified as a matter of law. This is especially true where the conflict is one which the testator did not know or foresee. In re Estate of Moore, 292 N.C. 58 , 231 S.E.2d 849, 1977 N.C. LEXIS 1042 (1977).

Right to Nominate Depends upon the Right to Administer. —

See Boynton v. Heartt, 158 N.C. 488 , 74 S.E. 470, 1912 N.C. LEXIS 73 (1912).

Public administrator could not be removed at the instance of nonresidents who had no right of appointment as administrator in consequence of not having the right to administer upon the estate in this State. Boynton v. Heartt, 158 N.C. 488 , 74 S.E. 470, 1912 N.C. LEXIS 73 (1912).

Correction of Error in Appointment. —

Petitioner, an heir at law and beneficiary under will, had a higher preference of appointment than respondent, who was neither an heir nor a beneficiary, and as the respondent should not have been appointed administrator C.T.A. without notice to the petitioner, it was not error for the clerk to correct this error by removing the respondent as administrator C.T.A. The fact that petitioner may not have been qualified to serve as administrator C.T.A. under subdivision (4) of this section because she was a nonresident of this State who had not appointed a process agent was irrelevant. In re Estate of Cole, 80 N.C. App. 720, 343 S.E.2d 263, 1986 N.C. App. LEXIS 2249 (1986).

Appointment of Replacement Representative. —

The trial court did not abuse its discretion in appointing the public administrator, rather than the testamentary alternative, to finalize the estate after removing the personal representative for misconduct. In re Estate of Parrish, 143 N.C. App. 244, 547 S.E.2d 74, 2001 N.C. App. LEXIS 272 (2001).

Collateral Attack for Disregard of Statutory Provisions. —

When, in disregard of provisions prohibiting the issuance of letters to persons adjudged incompetent, letters were issued to a foreign executor, this was a mere irregularity and could not be collaterally attacked in an action by the executor. Batchelor v. Overton, 158 N.C. 395 , 74 S.E. 20, 1912 N.C. LEXIS 57 (1912).

II.Persons Under 18

Editor’s Note. —

Many of the cases below were decided under former Chapter 28 or law prior thereto.

A widow under 21 [now 18] is not eligible to appointment as administratrix. The court may, however, appoint an administrator during her minority and, on arriving at full age, grant her the administration; or it may give the office to her appointee. Wallis v. Wallis, 60 N.C. 78 , 1863 N.C. LEXIS 19 (1863).

III.Incompetents

Editor’s Note. —

Many of the cases below were decided under former Chapter 28 or law prior thereto.

Finding of Incompetency Based on Undisclosed and Unrecorded Information. —

Where the record shows that the conclusion of the clerk as to the alleged incompetency of the petitioner rests upon undisclosed and unrecorded information obtained by the clerk from third persons outside of court in the absence of the petitioner and his counsel, who were not apprised of the identity of such third persons or accorded any opportunity to cross-examine or confute them, the refusal of the clerk to issue letters of administration to the petitioner is error. In re Edwards' Estate, 234 N.C. 202 , 66 S.E.2d 675, 1951 N.C. LEXIS 420 (1951).

Illiteracy as Incompetency under Former Statute. —

See Stephenson v. Stephenson, 49 N.C. 472 , 1857 N.C. LEXIS 130 (1857).

IV.Nonresidents

Editor’s Note. —

Many of the cases below were decided under former Chapter 28 or law prior thereto.

Noncitizen Entitled to Federal Forum. —

Diversity jurisdiction exists for the protection of the noncitizen who is obliged to sue or to be sued in the state of his adversary. It is for that reason that state statutes or decisions that require a noncitizen to appoint an in-state representative should not have the effect of depriving the noncitizen of the federal forum that Congress has provided him. Miller v. Perry, 456 F.2d 63, 1972 U.S. App. LEXIS 11370 (4th Cir. 1972).

Citizenship of Beneficiaries Controls in Diversity Action. —

In determining the presence of diversity of citizenship when state law requires that an action be prosecuted in the name of a resident administrator, the citizenship of the beneficiaries, rather than that of the administrator, is relevant. Miller v. Perry, 456 F.2d 63, 1972 U.S. App. LEXIS 11370 (4th Cir. 1972).

I.General Consideration

Editor’s Note. —

Many of the cases below were decided under former Chapter 28 or law prior thereto.

This section prescribes procedure for the removal of a particular person as administrator for causes specified therein; and, upon removal of such person, the clerk must immediately appoint some other person to succeed in the administration of the estate. In re Bane, 247 N.C. 562 , 101 S.E.2d 369, 1958 N.C. LEXIS 566 (1958).

G.S. 1A-1 , Rule 58 Inapplicable to Denial of Motion to Revoke. —

G.S. 1A-1 , Rule 58 has no application in case involving the denial of a motion made before the clerk of superior court pursuant to this section to revoke the letters testamentary of executor. In re Estate of Trull, 86 N.C. App. 361, 357 S.E.2d 437, 1987 N.C. App. LEXIS 2708 (1987).

Purpose of Proceeding to Remove Executor or Administrator. —

See In re Battle's Estate, 158 N.C. 388 , 74 S.E. 23, 1912 N.C. LEXIS 55 (1912).

Power to Revoke Imports Power to Refuse. —

The power vested in the clerk under this section to revoke letters for good cause carries with it the power to refuse to grant letters for cause for which a revocation would be justified. In re Will of Gulley, 186 N.C. 78 , 118 S.E. 839, 1923 N.C. LEXIS 179 (1923).

Jurisdiction of Clerk. —

The clerk of the superior court has jurisdiction to entertain verified petition for the removal of an administrator. In re Estate of Johnson, 232 N.C. 59 , 59 S.E.2d 223, 1950 N.C. LEXIS 402 (1950).

The clerk has original and primary jurisdiction of a probate judge to revoke letters, subject to review upon appeal by either party. Murrill v. Sandlin, 86 N.C. 54 , 1882 N.C. LEXIS 142 (1882); McMichael v. Proctor, 243 N.C. 479 , 91 S.E.2d 231, 1956 N.C. LEXIS 375 (1956).

The clerk of superior court, as probate judge, has exclusive original jurisdiction to hear and decide a motion to remove an administrator for cause. Porth v. Porth, 3 N.C. App. 485, 165 S.E.2d 508, 1969 N.C. App. LEXIS 1609 (1969).

Jurisdiction of Clerk over Wrongful Death Proceeds. —

Although the trial court found that decedent’s wrongful death proceeds were not assets of the estate, the clerk retained authority to oversee the distribution of the proceeds as a result of its power to order an accounting of estate assets, to remove the defendant as the estate’s personal representative, to impose sanctions against her based upon alleged misconduct concerning the proceeds, and to order the proceeds submitted to the clerk or public administrator; although wrongful death actions may not yield assets for the estate, a personal representative’s authority to commence and settle these actions is “incident to the collection, preservation, liquidation [and] distribution of a decedent’s estate.” In re Estate of Parrish, 143 N.C. App. 244, 547 S.E.2d 74, 2001 N.C. App. LEXIS 272 (2001).

Exercise of Discretion. —

The exigencies of administration require the exercise of sound judgment, and this necessarily implies discretion in its supervision. Hence, the removal of administrators calls for the exercise of discretion by the clerk. Jones v. Palmer, 215 N.C. 696 , 2 S.E.2d 850, 1939 N.C. LEXIS 347 (1939).

Discretion Reviewable on Appeal. —

In revoking letters of administration under this section the clerk exercises a legal discretion which is reviewable on appeal. In re Galloway's Estate, 229 N.C. 547 , 50 S.E.2d 563, 1948 N.C. LEXIS 368 (1948); In re Will of Taylor, 293 N.C. 511 , 238 S.E.2d 774, 1977 N.C. LEXIS 976 (1977).

Revocation of Prior Appointment and Appointment of Widow’s Nominee. —

The appointment of one as administrator of an estate should be revoked upon renunciation of the widow, who has a prior right to administer the estate, and her nomination of another in her stead, and the clerk of the court has jurisdiction and should appoint on her request a fit and competent person nominated by her. In re Estate of Loflin, 224 N.C. 230 , 29 S.E.2d 692, 1944 N.C. LEXIS 337 (1944).

Filling Vacancy Caused by Resignation. —

Where, in proceedings for removal of an administrator, the administrator resigns, a vacancy occurs and the clerk has authority to appoint a successor. In re Estate of Johnson, 232 N.C. 59 , 59 S.E.2d 223, 1950 N.C. LEXIS 402 (1950).

Filing of “Final Report” Does Not Create Vacancy. —

The filing of a “final report” by an executor does not have the effect of removing him from office if in fact the estate has not been fully settled, and therefore the filing of the report does not create a vacancy and does not give the clerk authority to appoint an administrator c.t.a., d.b.n. Edwards v. McLawhorn, 218 N.C. 543 , 11 S.E.2d 562, 1940 N.C. LEXIS 39 (1940).

Pleading and Procedure. —

The application to remove an executor may be made by any person rightfully interested, by petition or motion in writing, or formal complaint, setting forth the grounds of application supported by affidavit. The allegations thus made may be met by a demurrer in a proper case, or by answer. Edwards v. Cobb, 95 N.C. 4 , 1886 N.C. LEXIS 193 (1886).

Because hearings both to compel accountings and remove personal representative are instituted by notice rather than a formal civil complaint and summons, they are “special proceedings,” for which beneficiaries are not required to commence a civil action. In re Estate of Parrish, 143 N.C. App. 244, 547 S.E.2d 74, 2001 N.C. App. LEXIS 272 (2001).

Necessity for Order to Show Cause. —

The clerk cannot appoint a collector, when the will has been probated and executor qualified, and remove the executor, without a hearing based on notice to show cause why the executor should not be removed. In re Palmer's Will, 117 N.C. 133 , 23 S.E. 104, 1895 N.C. LEXIS 30 (1895).

Clerk cannot remove a public administrator without notice to show cause why he should not be removed. Trotter v. Mitchell, 115 N.C. 190 , 20 S.E. 386, 1894 N.C. LEXIS 207 (1894).

Finding Sufficient to Support Revocation. —

Findings that an administrator had moved from the jurisdiction of this State and had interests antagonistic to the estate was sufficient to support the clerk’s order revoking letters of administration. In re Sams' Estate, 236 N.C. 228 , 72 S.E.2d 421, 1952 N.C. LEXIS 514 (1952).

Order of revocation of letters testamentary was justified where the clerk made a finding that executor had refused to pay widow her share from the sale of personal property, and that he had arbitrarily mixed and commingled funds of the estate with funds of the widow. In re Boyles' Estate, 243 N.C. 279 , 90 S.E.2d 399, 1955 N.C. LEXIS 577 (1955).

Proceeding to remove an executor and a civil suit for damages are not the same cause of action. The proceeding to remove an executor is purely statutory, with probate jurisdiction vested in the clerk of superior court, and reviewable by a superior court judge on appeal. A civil suit for damages involves a full trial with the right to have factual issues resolved by a jury. Shelton v. Fairley, 72 N.C. App. 1, 323 S.E.2d 410, 1984 N.C. App. LEXIS 3975 (1984).

Statutory action to remove administrators or executors is not res judicata in any other proceeding which the parties are entitled to pursue. Shelton v. Fairley, 72 N.C. App. 1, 323 S.E.2d 410, 1984 N.C. App. LEXIS 3975 (1984).

A proceeding under this section is not res judicata in a civil action for damages. Shelton v. Fairley, 72 N.C. App. 1, 323 S.E.2d 410, 1984 N.C. App. LEXIS 3975 (1984).

Orders entered in a proceeding under this section, in which an executor must show cause why he should not be removed, do not constitute res judicata as to a later civil action for damages between the parties or collaterally estop the bringing of such an action. Shelton v. Fairley, 72 N.C. App. 1, 323 S.E.2d 410, 1984 N.C. App. LEXIS 3975 (1984).

Appointment of administratrix as res judicata. —

An adjudication by the clerk that the administratrix theretofore appointed by him was not the widow of decedent is not res judicata in any other proceeding between the parties which respondent may be entitled to pursue. In re Estate of Lowther, 271 N.C. 345 , 156 S.E.2d 693, 1967 N.C. LEXIS 1195 (1967).

Beneficiaries Seeking Removal Not Held to Election of Remedies. —

Prejudice would result if, when beneficiaries sought to remove an executor, they were held to an election of remedies and could not later bring a civil action for damages. Such a policy would either chill exercise of the right to seek statutory removal of an executor or force beneficiaries prematurely to bring civil actions for damages. Shelton v. Fairley, 72 N.C. App. 1, 323 S.E.2d 410, 1984 N.C. App. LEXIS 3975 (1984).

Denial of Motion to Revoke “Entered” When Clerk Announced After Hearing He Would Deny It. —

Clerk’s order denying motion to revoke letters testamentary was “entered” when the clerk announced after hearing that he would deny the petition. The party aggrieved by the ruling, the petitioner, was present and even excepted to the order, had ten days thereafter to give notice of appeal pursuant to G.S. 1-272 [see now G.S. 1-301.1 et seq.]. In re Estate of Trull, 86 N.C. App. 361, 357 S.E.2d 437, 1987 N.C. App. LEXIS 2708 (1987).

Verification Sufficient. —

Signing of petition for revocation before a notary public under oath, petitioner having sworn that the matters stated in the petition upon her information and belief were true, constituted sufficient verification required by this section. In re Estate of Longest, 74 N.C. App. 386, 328 S.E.2d 804, 1985 N.C. App. LEXIS 3506 (1985).

“Special Proceeding.” —

The procedure for the revocation of the letters testamentary of an administratrix as set forth in this section is a “special proceeding,” and the clerk had statutory authority to appoint the guardian ad litem. In re Estate of Sturman, 93 N.C. App. 473, 378 S.E.2d 204, 1989 N.C. App. LEXIS 202 (1989).

The minor heirs had a vested interest in who administered the estate of their deceased father and were entitled under this section to appeal the decision of the clerk on the revocation issue. This was sufficient to bring the matter within the purview of Rule 17 providing it was an “action or special proceeding.” In re Estate of Sturman, 93 N.C. App. 473, 378 S.E.2d 204, 1989 N.C. App. LEXIS 202 (1989).

Sanctions For Filing Revocation Petition. —

Court had authority to impose sanctions under G.S. 1A-1-11 against an heir under a former will for filing a revocation petition under G.S. 28A-9-1 that was not well-grounded in law; heir did not have standing to seek executors’ removal because the will had been admitted to probate, and there was no evidence of undue influence. In re Will of Durham, 206 N.C. App. 67, 698 S.E.2d 112, 2010 N.C. App. LEXIS 1448 (2010).

II.Disqualification

“Legally Competent.” —

As to definition of term “legally competent” under former statute, see In re Will of Covington, 252 N.C. 551 , 114 S.E.2d 261, 1960 N.C. LEXIS 615 (1960).

III.Default or Misconduct

Procedure to remove an executor or administrator for default or misconduct is by order issued by the clerk to the executor or administrator to show cause, and in such proceeding the respondent must be given notice and an opportunity to be heard, with right of appeal. Edwards v. McLawhorn, 218 N.C. 543 , 11 S.E.2d 562, 1940 N.C. LEXIS 39 (1940).

Question Determinable by Clerk. —

In a proceeding under this section for revocation of letters of administration, the question determinable by the clerk was solely whether the administrators have been guilty of default or misconduct in the due execution of their office, and the rights and liabilities of adverse parties in the estate could not be litigated in such proceeding. In re Galloway's Estate, 229 N.C. 547 , 50 S.E.2d 563, 1948 N.C. LEXIS 368 (1948).

Failure to Discharge Duties as Ground of Removal. —

Where the executor becomes bankrupt and is the owner of no property, and has neglected for six years to file an inventory or return of any sort, and has failed to convert the personal property into money, upon application of creditors he may be required to give bond or, in default, be removed. Barnes v. Brown, 79 N.C. 401 , 1878 N.C. LEXIS 77 (1878).

As to removal for failure to make statement of account, see Armstrong v. Stowe, 77 N.C. 360 , 1877 N.C. LEXIS 99 (1877).

Refusal to Disclose Information. —

Refusal on the part of the executor named in the will to disclose information as to the amount and nature of personalty coming into his possession, and as to other matters relative to his fitness, is a ground for withholding or revoking letters testamentary and granting them to some other person. In re Will of Gulley, 186 N.C. 78 , 118 S.E. 839, 1923 N.C. LEXIS 179 (1923).

Poverty of an executor is not of itself a reason for restraining him from administering the estate. There must be some maladministration or some danger of loss from his misconduct or negligence for which he will not be able to answer by reason of his insolvency. Wilkins v. Harris, 60 N.C. 592 (1864).

Poverty is not a ground to require the representative to give bond as an alternative of giving up his office. Fairbairn v. Fisher, 57 N.C. 390 , 1859 N.C. LEXIS 203 (1859).

Insolvency in Lifetime of Testator. —

An executor will not be removed for insolvency, if such was his condition in the lifetime of his testator and to the knowledge of the testator, when there is no evidence of waste or misapplication of funds. In re Knowles' Estate, 148 N.C. 461 , 62 S.E. 549, 1908 N.C. LEXIS 228 (1908).

Where heirs at law of an estate were appointed administrators, an order of the clerk revoking the letters of administration upon consideration of evidence of their failure to account for rents and profits from the realty is based upon a confusion of their duties, obligations and liabilities as administrators and their rights and liabilities as heirs at law, and the cause will be remanded in order that the evidence may be considered in its true legal light. In re Galloway's Estate, 229 N.C. 547 , 50 S.E.2d 563, 1948 N.C. LEXIS 368 (1948).

Failure of Nonresident Executrix to Appoint Process Agent. —

The failure and refusal by a nonresident executrix to appoint a process agent was sufficient ground under this section for her removal. In re Brauff's Will, 247 N.C. 92 , 100 S.E.2d 254, 1957 N.C. LEXIS 547 (1957).

Where decedent’s daughter repeatedly requested that wrongful death action be brought, and offered to pay all expenses for it, but was confronted with alleged collusion and willful obstruction on the part of administratrix and attorney, and within the two-year statute of limitations period, filed action against administratrix, attorney and insurer alleging breach of fiduciary duties and collusion, her contributory negligence, if any, in failing to seek removal of administratrix, was not such as to warrant dismissal under G.S. 1A-1 , Rule 12(b)(6). Jenkins v. Wheeler, 69 N.C. App. 140, 316 S.E.2d 354, 1984 N.C. App. LEXIS 3397 (1984).

Executor’s acceptance of commissions based on an erroneous interpretation of a statute would not be misconduct requiring revocation of letters testamentary. Matthews v. Watkins, 91 N.C. App. 640, 373 S.E.2d 133, 1988 N.C. App. LEXIS 910 (1988), aff'd, 324 N.C. 541 , 379 S.E.2d 857, 1989 N.C. LEXIS 291 (1989).

Statement of Belief in Affidavit Is Insufficient. —

A statement in an affidavit for the removal of executor of a mere belief that he will misapply the funds is not sufficient for removal. The affidavit should state the facts or reasons upon which such belief is based. Neighbors v. Hamlin, 78 N.C. 42 , 1878 N.C. LEXIS 161 (1878).

Allegations of Misconduct Held Sufficient. —

Allegations that coexecutor failed to timely file estate accountings with the clerk’s office, disregarding notices issued by the clerk that such accountings were due, that he paid himself approximately $32,900 from the estate for his commission and attorneys’ fees without approval of the clerk and that this amount was in excess of any amount which he could legally be allowed for commissions and legal fees, and that through his default and misconduct he had violated his fiduciary duty as a coexecutor of the estate constituted sufficient grounds upon which executrix could petition for the revocation of coexecutor’s letters under subdivision (a)(3) of this section. In re Estate of Longest, 74 N.C. App. 386, 328 S.E.2d 804, 1985 N.C. App. LEXIS 3506 (1985).

Allegations of Misconduct Held Insufficient. —

Grounds for revocation of letters of administration did not exist where a co-administrator did not seek to revoke the letters under grounds identified in G.S. 28A-9-1(a). In re Estate of Severt, 194 N.C. App. 508, 669 S.E.2d 886, 2008 N.C. App. LEXIS 2240 (2008).

IV.Private Interest

Interest in Property Which Is Liable for Estate Debt. —

The finding that respondent-administrator c.t.a. and petitioner are tenants in common of certain real property of the estate which is liable for debts of the estate to the extent that the personal property is insufficient to pay such debts does not support the conclusion that respondent had a private interest that might tend to hinder or be adverse to a fair and proper administration of the estate. In re Will of Taylor, 32 N.C. App. 742, 234 S.E.2d 11, 1977 N.C. App. LEXIS 2051 , aff'd, 293 N.C. 511 , 238 S.E.2d 774, 1977 N.C. LEXIS 976 (1977).

Joint Ownership with Decedent. —

Where there is no evidence of bad faith or fraudulent concealment, a claim by the administrator that he owned jointly with the decedent a part of the personal estate of the latter is not such an adverse interest as to disqualify him in his office. Morgan v. Morgan, 156 N.C. 169 , 72 S.E. 206, 1911 N.C. LEXIS 151 (1911).

I.General Consideration

Editor’s Note. —

Many of the cases below were decided under former Chapter 28 or law prior thereto.

Proceeding to sell land under this section is a special proceeding before the clerk, who has original and exclusive jurisdiction of the matter. Baker v. Carter, 127 N.C. 92 , 37 S.E. 81, 1900 N.C. LEXIS 28 (1900); Holcomb v. Hemric, 56 N.C. App. 688, 289 S.E.2d 620, 1982 N.C. App. LEXIS 2475 (1982).

Unless Matter Involves Equities Over Which Superior Court Has Jurisdiction. —

If equities are involved in the case upon which the superior court acquires jurisdiction of a part, it will determine the whole matter. Baker v. Carter, 127 N.C. 92 , 37 S.E. 81, 1900 N.C. LEXIS 28 (1900); Holcomb v. Hemric, 56 N.C. App. 688, 289 S.E.2d 620, 1982 N.C. App. LEXIS 2475 (1982).

Bill by United States to Subject Land to Payment of Judgment. —

The federal district court had jurisdiction of a bill in equity by the United States to subject to payment of a judgment land situated in this State which had descended to the heirs of the judgment debtor, there being no personal assets. United States v. Minor, 254 F. 57, 1918 U.S. App. LEXIS 1279 (4th Cir. 1918).

Presumption of Regularity. —

The regularity of the proceedings under this section will be presumed. Wadford v. Davis, 192 N.C. 484 , 135 S.E. 353, 1926 N.C. LEXIS 326 (1926).

Vesting of Real Property in Heirs. —

When a property owner dies intestate, the title to his real property vests immediately in his heirs. The decedent’s personal representative has the power, upon petition to the clerk of superior court, to sell decedent’s real property for payments of debts and other claims against the decedent’s estate, but the proceeding is an adversary one, requiring that the heirs be made parties. If an heir is not joined, the order of sale is void as to him. Swindell v. Lewis, 82 N.C. App. 423, 346 S.E.2d 237, 1986 N.C. App. LEXIS 2441 (1986).

Who May Sell. —

The personal representative is the proper party to sell the homestead of deceased for distribution. Town of Tarboro v. Penders, 153 N.C. 427 , 69 S.E. 425, 69 S.E. 636, 1910 N.C. LEXIS 103 (1910).

Purchasers of land from a decedent’s estate took title free and clear of a mortgagee’s lien because (1) a qualified executrix followed statutory procedures to sell the land, (2) an order of sale stating the order’s purpose was to liquidate assets disposed of the mortgagee’s deed of trust, and (3) the mortgagee’s lien followed sale proceeds. Nationstar Mortg. LLC v. Curry, 262 N.C. App. 218, 822 S.E.2d 122, 2018 N.C. App. LEXIS 1090 (2018).

Nature of Representative’s Authority. —

The authority of the representative under this section is a naked power without title or interest in the estate. He is a mere agent of the court. Floyd v. Herring, 64 N.C. 409 , 1870 N.C. LEXIS 123 (1870).

Representative Could Be Compelled to Sell under Former Statute. —

See Pelletier v. Saunders, 67 N.C. 261 , 1872 N.C. LEXIS 224 (1872); Wilson v. Bynum, 92 N.C. 717 , 1885 N.C. LEXIS 283 (1885); Clement v. Cozart, 109 N.C. 173 , 13 S.E. 862, 1891 N.C. LEXIS 190 (1891); Lee v. McKoy, 118 N.C. 518 , 24 S.E. 210, 1896 N.C. LEXIS 87 (1896); Yarborough v. Moore, 151 N.C. 116 , 65 S.E. 763, 1909 N.C. LEXIS 209 (1909); Hobbs v. Cashwell, 152 N.C. 183 , 67 S.E. 495, 1910 N.C. LEXIS 235 (1910); Flynn v. Rumley, 212 N.C. 25 , 192 S.E. 868, 1937 N.C. LEXIS 224 (1937).

Amount of Realty Which May Be Sold. —

This section authorizing the sale of the lands of a decedent is in derogation of the common law, and hence the courts will not deny to an administrator the discretion of selling less land than is ordered to be sold, if necessity should not arise for such sale; and, conversely, the administrator will be allowed to continue to sell lands embraced in the license so long as the necessity to raise assets exists. Sledge v. Elliott, 116 N.C. 712 , 21 S.E. 797, 1895 N.C. LEXIS 270 (1895).

“At Any Time.” —

The phrase “at any time,” which appeared in the first sentence of a former statute, presupposed an application without undue delay. Pelletier v. Saunders, 67 N.C. 261 , 1872 N.C. LEXIS 224 (1872); Clement v. Cozart, 109 N.C. 173 , 13 S.E. 862, 1891 N.C. LEXIS 190 (1891); Creech v. Wilder, 212 N.C. 162 , 193 S.E. 281, 1937 N.C. LEXIS 258 (1937), limited, Morehead v. Harris, 262 N.C. 330 , 137 S.E.2d 174, 1964 N.C. LEXIS 653 (1964).

If personalty has been wasted by the representative, his successor must first resort to his bond before proceeding against the lands. Lilly v. Wooley, 94 N.C. 412 , 1886 N.C. LEXIS 73 (1886); Clement v. Cozart, 107 N.C. 695 , 12 S.E. 254, 1890 N.C. LEXIS 124 (1890).

But this does not apply where representative is insolvent, his bond lost, and sureties unknown. Brittain v. Dickson, 104 N.C. 547 , 10 S.E. 701, 1889 N.C. LEXIS 235 (1889).

Lands Not Assets Until Sold. —

Lands are not assets for the payment of the debts until they are sold and the proceeds received by the administrator. Wilson v. Bynum, 92 N.C. 717 , 1885 N.C. LEXIS 283 (1885).

The heirs should be given the opportunity to resist and prevent the land from being applied to the payment of a debt which they allege was wrongfully obtained. Holcomb v. Hemric, 56 N.C. App. 688, 289 S.E.2d 620, 1982 N.C. App. LEXIS 2475 (1982).

Claimant of Sole Seizin May Have Claim Adjudicated and Pay Debts to Prevent Sale. —

While under this section an administrator is entitled to sell lands of the deceased to make assets to pay debts of the estate, when a person claims sole seizin under a contract to devise as against the heirs of intestate, such person is entitled to adjudication of her claim of sole seizin before a sale of the property to make assets is ordered, since she may elect to discharge the debts of the estate and the costs of administration to prevent a sale of the lands. Chambers v. Byers, 214 N.C. 373 , 199 S.E. 398, 1938 N.C. LEXIS 353 (1938), limited, Lankford v. Wright, 347 N.C. 115 , 489 S.E.2d 604, 1997 N.C. LEXIS 594 (1997).

Creditor Attacking Debt as Fraudulent. —

A judgment creditor of a devisee desiring to attack a debt set forth in the petition to sell land as being fraudulent must do so in the same proceedings, and not by independent action. Wadford v. Davis, 192 N.C. 484 , 135 S.E. 353, 1926 N.C. LEXIS 326 (1926).

Homestead of a minor child of a testator cannot be sold during the minority of such child. Bruton v. McRae, 125 N.C. 206 , 34 S.E. 397, 1899 N.C. LEXIS 194 (1899). See Hinsdale v. Williams, 75 N.C. 430 , 1876 N.C. LEXIS 311 (1876).

Child who was made a party must have claimed homestead rights, otherwise he cannot subsequently claim as against the purchaser of the land. Dickens v. Long, 112 N.C. 311 , 17 S.E. 150, 1893 N.C. LEXIS 209 (1893).

Allotment of Dower in Lands in Another County Invalid. —

Deceased died seized of lands lying in two counties, and an administrator, appointed in the county of his residence, instituted proceedings in the other county to sell lands to make assets. The widow appeared therein asking that the lands be sold subject to dower and averring that she would later institute proceedings for the allotment of dower. Upon order of the clerk that the widow’s dower be allotted and that the remaining lands be sold to make assets, a sheriff and jury from that county went into the county of deceased’s residence and allotted dower by metes and bounds. It was held that the allotment was invalid, that the clerk of the other county was without authority to enter the order for the allotment of dower notwithstanding he had jurisdiction of the proceedings to sell lands to make assets, and might have ordered the lands sold subject to dower, and that the only provisions of this section giving the clerk jurisdiction in regard to dower in lands outside his county was where the widow consents that the lands be sold clear of dower and that a certain part of the proceeds of sale be set apart to her in commutation of dower. High v. Pearce, 220 N.C. 266 , 17 S.E.2d 108, 1941 N.C. LEXIS 522 (1941).

Converting into Creditor’s Suit. —

When proceedings for the sale of land are instituted under this section by the representative, they cannot be converted into a creditor’s suit. Brittain v. Dickson, 111 N.C. 529 , 16 S.E. 326, 1892 N.C. LEXIS 217 (1892).

Effect of Judgment Quando. —

See Wilson v. Bynum, 92 N.C. 717 , 1885 N.C. LEXIS 283 (1885).

II.Practice and Procedure

Editor’s Note. —

Many of the cases below were decided under former Chapter 28 or law prior thereto.

Proper Parties. —

In proceedings to sell land, heirs and devisees are necessary parties. Person v. Montgomery, 120 N.C. 111 , 26 S.E. 645, 1897 N.C. LEXIS 24 (1897).

Sale Though Parties Not in Esse. —

The application for sale may be made notwithstanding the existence of devises to parties not in esse. Carraway v. Lassiter, 139 N.C. 145 , 51 S.E. 968, 1905 N.C. LEXIS 103 (1905).

Heirs of wife’s deceased husband were necessary parties to equitable distribution action in which husband’s administrator had been substituted as defendant, and they were properly added as parties defendant. Swindell v. Lewis, 82 N.C. App. 423, 346 S.E.2d 237, 1986 N.C. App. LEXIS 2441 (1986).

Notice to Creditors Unnecessary. —

No notice to creditors is required to be given under this section. Thompson v. Cox, 53 N.C. 311 , 1860 N.C. LEXIS 232 (1860).

Venue. —

The proper venue to make the application provided by this section is in the county where the land or some part thereof is situated. Ellis v. Adderton, 88 N.C. 472 , 1883 N.C. LEXIS 108 (1883).

It is in the county where the land or some part thereof lies, and not in the county where the decedent was domiciled and administration granted, that the application for sale must be filed, though formerly it could be filed in the county last referred to. Ellis v. Adderton, 88 N.C. 472 , 1883 N.C. LEXIS 108 (1883).

Removal to Proper County. —

A petition filed in the wrong county may, upon application, be removed to the proper county. Falls of Neuse Mfg. Co. v. Brower, 105 N.C. 440 , 11 S.E. 313, 1890 N.C. LEXIS 250 (1890).

Statute of Limitations Does Not Bar Right or Duty to Sell Realty. —

As long as the estate remained unsettled, and real property of the decedent remained subject to sale, the administrator could unquestionably proceed by proper petition in the original proceeding to have the real property sold for the payment of outstanding debts and for the final settlement of the estate. No statute of limitations barred that right or the performance of that duty. Rocky Mount Sav. & Trust Co. v. McDearman, 213 N.C. 141 , 195 S.E. 531, 1938 N.C. LEXIS 25 (1938).

As long as the estate remains unsettled, no statute of limitations bars the right and duty of the personal representative to sell lands to make assets to pay the debts of the estate. Gibbs v. Smith, 218 N.C. 382 , 11 S.E.2d 140, 1940 N.C. LEXIS 162 (1940).

Representative cannot sell land to pay debts barred. Robinson v. McDowell, 133 N.C. 182 , 45 S.E. 545, 1903 N.C. LEXIS 39 (1903).

Heirs or devisees may plead statute of limitations or any other defense to an application for license to sell for payment of debts on which no judgment is obtained. Bevers v. Park, 88 N.C. 456 , 1883 N.C. LEXIS 105 (1883); Syme v. Riddle, 88 N.C. 463 , 1883 N.C. LEXIS 106 (1883); Speer v. James, 94 N.C. 417 , 1886 N.C. LEXIS 74 (1886); Proctor v. Proctor, 105 N.C. 222 , 10 S.E. 1036, 1890 N.C. LEXIS 226 (1890); Person v. Montgomery, 120 N.C. 111 , 26 S.E. 645, 1897 N.C. LEXIS 24 (1897).

Unless Judgment Has Been Obtained. —

If a judgment has been previously obtained for the debt the heirs or devisees are concluded thereby (except where fraud and collusion can be shown) and they cannot now plead any defense which could have been, but was not, pleaded by the representative. Long v. Oxford, 108 N.C. 280 , 13 S.E. 112, 1891 N.C. LEXIS 57 (1891). See also Smith v. Brown, 101 N.C. 347 , 7 S.E. 890, 1888 N.C. LEXIS 57 (1888); Brittain v. Dickson, 104 N.C. 547 , 10 S.E. 701, 1889 N.C. LEXIS 235 (1889); Proctor v. Proctor, 105 N.C. 222 , 10 S.E. 1036, 1890 N.C. LEXIS 226 (1890); Lassiter v. Upchurch, 107 N.C. 411 , 12 S.E. 63, 1890 N.C. LEXIS 82 (1890); Woodlief v. Bragg, 108 N.C. 571 , 13 S.E. 211, 1891 N.C. LEXIS 111 (1891). But see Tilley v. Bivins, 112 N.C. 348 , 16 S.E. 759, 1893 N.C. LEXIS 215 (1893); Person v. Montgomery, 120 N.C. 111 , 26 S.E. 645, 1897 N.C. LEXIS 24 (1897).

I.General Consideration

Editor’s Note. —

Some of the cases below were decided under former Chapter 28 or law prior thereto.

Section Changes Common Law. —

The rule of the common law that a personal right of action dies with the person has been changed by this section and former G.S. 1-74 (see now G.S. 1A-1 , Rule 25), and, except in the instances specified in subsection (b), an action originally maintainable by or against a deceased person is now maintainable by or against his personal representative. Suskin v. Maryland Trust Co., 214 N.C. 347 , 199 S.E. 276, 1938 N.C. LEXIS 343 (1938). See Mast v. Sapp, 140 N.C. 533 , 53 S.E. 350, 1906 N.C. LEXIS 41 (1906).

The rule of the common law that a personal right of action dies with the person has been changed by former G.S. 1-74 (see now G.S. 1A-1 , Rule 25) and this section. Paschal v. Autry, 256 N.C. 166 , 123 S.E.2d 569, 1962 N.C. LEXIS 426 (1962).

This section clearly manifests a two-fold legislative purpose: (1) To declare what causes of action survive the death of the person in whose favor or against whom they have accrued; and (2) to designate the persons who may sue or be sued upon such surviving causes of action. McIntyre v. Josey, 239 N.C. 109 , 79 S.E.2d 202 (1953). In accord with the main volume. See Brace v. Strother, 90 N.C. App. 357, 368 S.E.2d 447, 1988 N.C. App. LEXIS 521 (1988), disapproved, Ragan v. Hill, 337 N.C. 667 , 447 S.E.2d 371, 1994 N.C. LEXIS 487 (1994).

Availability of Survivorship Action. —

Trial court properly granted summary judgment to defendant as to an insurance company’s action under the survivorship statute, G.S. 28A-18-1 , because the claim was based on a single negligent act of defendant, and thus the sole remedy available was under the wrongful death statute, G.S. 28A-18-2 , and any wrongful death action was barred by the statute of limitations under G.S. 1-53(4) . State Auto Ins. Co. v. Blind, 185 N.C. App. 707, 650 S.E.2d 25, 2007 N.C. App. LEXIS 1940 (2007).

Beneficiary Lacked Standing to Sue Executor Absent Evidence of Demand Prior to Decedent’s Death. —

Absent evidence of an assertion of a prior demand against the executor before the decedent’s death, or evidence that the beneficiary sought to remove the executor through petition before the clerk of superior court, the beneficiary lacked standing to sue the executor after the decedent died. Horry v. Woodbury, 189 N.C. App. 669, 659 S.E.2d 88, 2008 N.C. App. LEXIS 706 (2008), rev'd, 363 N.C. 7 , 673 S.E.2d 127, 2009 N.C. LEXIS 112 (2009).

Limitation for Wrongful Death Action Based on Medical Malpractice Not Extended by G.S. 1-15(c) . —

G.S. 1-15(c) would not apply to extend statute of limitations for plaintiff bringing action for wrongful death based on alleged acts of medical malpractice; plaintiff was required to bring her wrongful death claim within two years of deceased’s death, pursuant to G.S. 1-53(4) . King v. Cape Fear Mem. Hosp., 96 N.C. App. 338, 385 S.E.2d 812, 1989 N.C. App. LEXIS 997 (1989).

A viable fetus is a “person” under the Wrongful Death Act and the estate of such a person may bring an action for damages. Greer v. Parsons, 103 N.C. App. 463, 405 S.E.2d 921, 1991 N.C. App. LEXIS 800 (1991), aff'd, 331 N.C. 368 , 416 S.E.2d 174, 1992 N.C. LEXIS 275 (1992).

Decedent’s personal representative is the proper party plaintiff in a wrongful death action. Brendle v. General Tire & Rubber Co., 408 F.2d 116, 1969 U.S. App. LEXIS 13323 (4th Cir. 1969).

Substitution Order Ineffective As To Personal Representative Not Yet Appointed. —

Where order directing the substitution of a yet-to-be-appointed personal representative for deceased defendant did not comply with G.S. 28A-18-1 or G.S. 1A-1 , Rule 25, the order could not operate retroactively to substitute him as defendant once the personal representative was appointed, and the trial court erred in granting plaintiffs’ summary judgment motion because the personal representative did not receive timely notice of the motion under G.S. 1A-1 , Rule 56. Dixon v. Hill, 174 N.C. App. 252, 620 S.E.2d 715, 2005 N.C. App. LEXIS 2393 (2005), cert. denied, 548 U.S. 906, 126 S. Ct. 2972, 165 L. Ed. 2d 954, 2006 U.S. LEXIS 4950 (2006).

Action by the personal representative of deceased stillborn child was not barred by the release executed by child’s parents, as the release by its terms bound only themselves and their heirs and assigns as to their personal claims and did not purport to settle or affect a claim for the child’s wrongful death, and since under North Carolina law the parents, though the child’s next of kin, had no authority to either assert or settle a claim for the child’s wrongful death; only the child’s personal representative had that authority. Greer v. Parsons, 103 N.C. App. 463, 405 S.E.2d 921, 1991 N.C. App. LEXIS 800 (1991), aff'd, 331 N.C. 368 , 416 S.E.2d 174, 1992 N.C. LEXIS 275 (1992).

Debt Due Decedent Can Be Collected Only by Administrator. —

If a debt is due a decedent, it can be collected only by his administrator. Spivey v. Godfrey, 258 N.C. 676 , 129 S.E.2d 253, 1963 N.C. LEXIS 454 (1963).

Since pending the administration of an estate title to personal property of an intestate vests in his administrator and not his heirs, it necessarily follows that the administrator, and not creditors or heirs, is the proper party to bring an action to collect a debt due the estate or to recover specific personal property. Spivey v. Godfrey, 258 N.C. 676 , 129 S.E.2d 253, 1963 N.C. LEXIS 454 (1963).

Exceptions to Rule That Administrator Bring Suit. —

To the general rule that the administrator must bring suit there are certain exceptions. If the administrator has refused to bring the action to collect the assets; if there is collusion between a debtor and a personal representative — particularly if the latter is insolvent; or, if some other peculiar circumstance warrants it, the creditors or heirs may bring the action which the personal representative should have brought. However, in such a case the administrator must be a party defendant. Spivey v. Godfrey, 258 N.C. 676 , 129 S.E.2d 253, 1963 N.C. LEXIS 454 (1963).

Collector of the estate of a deceased tort-feasor can be sued in his representative capacity upon a cause of action under this section. McIntyre v. Josey, 239 N.C. 109 , 79 S.E.2d 202, 1953 N.C. LEXIS 628 (1953).

Right to Retain Attorney. —

Until a personal representative is appointed for an estate, no one has the right to retain an attorney to represent the estate. In re Alston, 10 N.C. App. 46, 177 S.E.2d 745, 1970 N.C. App. LEXIS 1184 (1970).

Removal of Personal Representative for Failure to Prosecute or Defend Action. —

In a proper case, a personal representative may be removed for failure to prosecute or defend actions in behalf of the estate he represents, but clearly a request to sue and a refusal would be conditions precedent. Spivey v. Godfrey, 258 N.C. 676 , 129 S.E.2d 253, 1963 N.C. LEXIS 454 (1963).

Suit by Heir to Collect His Share of Decedent’s Funds in Hands of Third Party. —

A suit by one of the heirs to collect his share of decedent’s funds in the hands of a third person is no different from a suit by a creditor of the estate to collect a debt due it. In the absence of allegations bringing the suit within one of the exceptions, this has never been permitted. Spivey v. Godfrey, 258 N.C. 676 , 129 S.E.2d 253, 1963 N.C. LEXIS 454 (1963).

Without alleging that the administrator has refused to bring suit or that there was collusion, one of six heirs of an intestate, by making his administrator a party defendant, may not maintain an action against another of the heirs for his distributive share of decedent’s money which that other is wrongfully withholding. Spivey v. Godfrey, 258 N.C. 676 , 129 S.E.2d 253, 1963 N.C. LEXIS 454 (1963).

Breach of a condition subsequent contained in a deed entitles the grantor during his life, or his heirs after his death, to bring suit for the land or to declare the estate forfeited, but does not entitle the administrator to bring such suit, this section not being applicable. Barkley v. Thomas, 220 N.C. 341 , 17 S.E.2d 482, 1941 N.C. LEXIS 535 (1941).

Bank Deposit Vests in Personal Representative. —

Where a bank was obligated in an unstated amount to its depositor, when he died, the relationship theretofore subsisting was that of debtor and creditor, and the title to said account vested in the depositor’s personal representative for collection and administration. Monroe v. Dietenhoffer, 264 N.C. 538 , 142 S.E.2d 135, 1965 N.C. LEXIS 1231 (1965).

Action Properly Dismissed Against Defendants Who Were Merely Collectors by Affidavit. —

Where plaintiff was required by this statute to bring his action against the collector or personal representative, his action was properly dismissed when he filed his action against defendants who were merely collectors by affidavit under G.S. 28A-25-1 , since plaintiff failed to bring his action against the proper party or parties. Brace v. Strother, 90 N.C. App. 357, 368 S.E.2d 447, 1988 N.C. App. LEXIS 521 (1988), disapproved, Ragan v. Hill, 337 N.C. 667 , 447 S.E.2d 371, 1994 N.C. LEXIS 487 (1994).

Summary Judgment for Deceased Defendant Ineffective Where Motion to Substitute Personal Representative Had Never Been Ruled Upon. —

After defendant doctor died, the medical malpractice action survived only against the personal representative or collector of the estate pursuant to G.S. 28A-18-1(a), and thus where the trial court never ruled upon the motion under G.S. 1A-1 , Rule 25(a) to substitute the executrix of the estate the trial court’s summary judgment order with respect to the doctor had no effect. Purvis v. Moses H. Cone Mem'l Hosp. Serv. Corp., 175 N.C. App. 474, 624 S.E.2d 380, 2006 N.C. App. LEXIS 128 (2006).

Guardian Not Authorized To Continue Action. —

Trial court erred in denying the collector of an estate partial summary judgment and in granting beneficiaries, a trustee, and a limited liability company (LLC) partial summary judgment in the collector’s action challenging the formation of the LLC and a trust because at the time the trial court entered its order denying the guardian of the estate summary judgment, the guardian was no longer authorized by statute to continue the action; pursuant to G.S. 1A-1 , N.C. R. Civ. P. 25(a), the trial court substituted the collector as plaintiff, and that order was entered after the trial court granted the beneficiaries, trustee, and LLC summary judgment. White v. Harold L. & Audree S. Mills Charitable Remainder Unitrust, 222 N.C. App. 277, 730 S.E.2d 213, 2012 N.C. App. LEXIS 958 (2012).

Exclusivity of Workers’ Compensation Remedies. —

Even if a forklift driver was not trained to sound a horn when entering or exiting defendant employer’s plant, there was no evidence injury or death was substantially certain to occur as the forklift had been operated in a similar manner for a number of years with no similar accident; a wrongful death action filed by a deceased worker’s representative under the North Carolina Wrongful Death Act, G.S. 28A-18-1 through G.S. 28A-18-8 , was precluded by G.S. 97-9 , G.S. 97-1 0.1, of the North Carolina Workers’ Compensation Act, G.S. 97-1 et seq., and summary judgment was therefore granted to the employer. Southern v. Metromont Materials, L.L.C., 331 F. Supp. 2d 386, 2004 U.S. Dist. LEXIS 6958 (W.D.N.C. 2004).

Jury Issue Raised. —

Personal representative’s wrongful death and survivorship claims could be brought in the same suit and separate issues should have been presented to the jury on whether a nursing home’s negligence caused the decedent’s pre-death injuries and wrongful death; the nursing home’s claim that a personal representative was required to delineate which of the decedent’s pressure sores caused his death and which sores caused him pain and suffering prior to his death was rejected as if the jury determined that the decedent died of Alzheimer’s disease, rather than an infection from the pressure sores, it could still reasonably determine that the nursing home’s negligence caused the pressure sores and that any or all of those sores caused the decedent pain and suffering prior to his death. Alston v. Britthaven, Inc., 177 N.C. App. 330, 628 S.E.2d 824, 2006 N.C. App. LEXIS 943 (2006).

Alternative Claims for Wrongful Death and Survivorship. —

Wrongful death and survivorship claims may be brought as alternative claims for the same negligent acts. Alston v. Britthaven, Inc., 177 N.C. App. 330, 628 S.E.2d 824, 2006 N.C. App. LEXIS 943 (2006).

II.Revival and Survival of Actions

Editor’s Note. —

Some of the cases below were decided under former Chapter 28 or law prior thereto.

All Causes of Action Survive Except Those Specified in Subsection (b). —

It appears that under this section all causes of action survive the death of the person in whose favor or against whom they have accrued, except the causes of action specified in subsection (b). McIntyre v. Josey, 239 N.C. 109 , 79 S.E.2d 202, 1953 N.C. LEXIS 628 (1953).

Causes of Action Specified in Subsection (b). —

Sister’s petition to declare her brother incompetent was nugatory after the death of the brother and did not survive the death of the brother; thus, the appeal abated and became moot upon the brother’s death and was dismissed. In re Higgins, 160 N.C. App. 704, 587 S.E.2d 77, 2003 N.C. App. LEXIS 1908 (2003).

Constitutional Claims. —

Where plaintiff homeowner challenged defendant town’s sign ordinance under the First Amendment, but he died during the pendency of the town’s appeal of the district court’s judgment in his favor, under 42 U.S.C.S. § 1988(a), whether the claim survived was dependent on state law, and the controversy over the retrospective constitutional injury — even if only compensable by nominal damages — survived under G.S. 28A-18-1(b)(3), given that the default rule of the North Carolina statute was one of survival. Brown v. Town of Cary, 706 F.3d 294, 2013 U.S. App. LEXIS 1423 (4th Cir. 2013).

Civil Action Based Upon Personal Injuries. —

This section provides that a civil action based upon personal injuries survives the death of the plaintiff. Schronce v. Coniglio, 124 N.C. App. 216, 476 S.E.2d 366, 1996 N.C. App. LEXIS 1019 (1996).

Cause of action which survives against successor personal representatives of an estate likewise survives in favor of successor personal representatives of the estate. Harrison v. Carter, 226 N.C. 36 , 36 S.E.2d 700, 1946 N.C. LEXIS 379 (1946).

Revival and Survival of Action against Representative. —

The general rule is that wherever an action can be revived against the representative, it will also survive against him. Butner v. Keelhn, 51 N.C. 60 , 1858 N.C. LEXIS 105 (1858).

Action Not Time Barred. —

Action filed on October 20, 2000, two days after qualification of deceased driver’s personal representative, for personal injuries arising out of an automobile accident that occurred on June 27, 1997, was not barred by G.S. 1-52 , where deceased died on November 7, 1997, at which time the three year limitations period had not yet expired, as under G.S. 28A-18-1 plaintiff’s cause of action survived his death, and thus, pursuant to G.S. 1-22 , plaintiff was permitted to commence a cause of action against deceased’s personal representative, provided that either the action was brought within the time specified for the presentation of claims in G.S. 28A-19-3 , or that notice of the claim upon which the action was based was presented to the personal representative within the time specified for the presentation of claims in G.S. 28A-19-3 . The personal representative’s failure to establish in the record that she complied with G.S. 28A-19-3(a) regarding general notice to creditors precluded her from relying upon the statute of limitations as a bar; moreover, under G.S. 28A-14-1(a), the absolute earliest “deadline” date which could have been specified by the personal representative in the general notice to creditors was January 18, 2001, three months from the day of the first publication or posting of such notice. Mabry v. Huneycutt, 149 N.C. App. 630, 562 S.E.2d 292, 2002 N.C. App. LEXIS 271 (2002).

This section does not revive the action against a distributee, but against the personal representative. Healey v. R.J. Reynolds Tobacco Co., 48 F. Supp. 207, 1942 U.S. Dist. LEXIS 2040 (D.N.C. 1942).

Action for Divorce Did Not Survive Husband’s Death. —

Trial court did not err in dismissing husband’s action for divorce and wife’s counterclaim for equitable distribution where husband died before decree of absolute divorce was granted. Caldwell v. Caldwell, 93 N.C. App. 740, 379 S.E.2d 271, 1989 N.C. App. LEXIS 381 (1989).

A divorce judgment which has not been shown to be void may not be set aside following the death of one of the parties so as to reinstate the marital relationship; while a divorce decree which affects property rights of the parties may on timely motion be amended, altered, or modified, the trial court does not have the jurisdiction to change the adjudged marital status of the parties. Dunevant v. Dunevant, 142 N.C. App. 169, 542 S.E.2d 242, 2001 N.C. App. LEXIS 47 (2001).

Annulment Action Survived Decedent’s Death. —

Where an executrix had filed a case on a decedent’s behalf as his guardian ad litem, seeking an annulment of the decedent’s marriage while the decedent was alive, and where substantial property rights hinged on the validity of the marriage, the action did not abate on the decedent’s death and the executrix was entitled to pursue it. Clark v. Foust-Graham, 171 N.C. App. 707, 615 S.E.2d 398, 2005 N.C. App. LEXIS 1365 (2005), cert. denied, writ denied sub nom. Goodwin v. Smith, 362 N.C. 680 , 670 S.E.2d 563, 2008 N.C. LEXIS 1038 (2008).

Cause of Action for Tortious Injury to Personal Property. —

Since it is not one of the causes of action enumerated in subsection (b), a cause of action for a tortious injury to personal property survives the death of either party. McIntyre v. Josey, 239 N.C. 109 , 79 S.E.2d 202, 1953 N.C. LEXIS 628 (1953).

Action for Negligent Injury. —

The fact that the injury in suit did not cause the death of the injured party, but that death resulted from another cause, does not prevent the survival of an action for negligent injury. Fuquay v. A. & W. Ry., 199 N.C. 499 , 155 S.E. 167, 1930 N.C. LEXIS 161 (1930).

Personal representative was entitled to proceed on both a survivorship claim and a wrongful death claim where he alleged that a nursing home’s negligence resulted not only in the decedent’s death, but also in injury, pain and suffering, and medical expenses prior to his death. Alston v. Britthaven, Inc., 177 N.C. App. 330, 628 S.E.2d 824, 2006 N.C. App. LEXIS 943 (2006).

Trial court should have submitted survivorship issues to the jury as a personal representative presented sufficient evidence of the decedent’s pre-death injuries, including evidence related to the questions of preventability of the decedent’s pressure sores, the treatment of those wounds, and whether and to what degree the wounds caused the decedent pain; the personal representative presented substantial evidence, notwithstanding the nursing home’s contrary evidence, to allow the jury to conclude that the nursing home negligently failed to prevent the decedent’s pressure sores and that those pressure sores caused the decedent pain and suffering prior to his death. Alston v. Britthaven, Inc., 177 N.C. App. 330, 628 S.E.2d 824, 2006 N.C. App. LEXIS 943 (2006).

Action Under Tort Claims Act. —

Recovery against the county board of education pursuant to the North Carolina Tort Claims Act did not bar plaintiff’s claims against the individual bus driver who caused the wreck, or plaintiff’s uninsured motorist/underinsured motorist (UM/UIM) carrier for damages in excess of the maximum recovery allowable under the Tort Claims Act. Oakley v. Thomas, 112 N.C. App. 130, 434 S.E.2d 663, 1993 N.C. App. LEXIS 1016 (1993).

There is a surviving cause of action for predeath expenses and pain and suffering. Brendle v. General Tire & Rubber Co., 408 F.2d 116, 1969 U.S. App. LEXIS 13323 (4th Cir. 1969).

An injured person’s common-law right of action to recover damages for hospital and medical expenses and for pain and suffering caused by the negligence of another survives to the injured party’s personal representative. Bowen v. Constructors Equip. Rental Co., 283 N.C. 395 , 196 S.E.2d 789, 1973 N.C. LEXIS 990 (1973).

Right of a ward to sue his guardian for lack of diligence in the care of the estate survives to the ward’s administrator. Kuykendall v. Proctor, 270 N.C. 510 , 155 S.E.2d 293, 1967 N.C. LEXIS 1384 (1967).

An action brought by the administrator of a ward’s estate against the guardian to recover money lost because of lack of diligence by the guardian is not one for relief which could not be enjoyed, or the granting of which would be nugatory after death, so as to fall within the class specified in subdivision (3) of subsection (b). Kuykendall v. Proctor, 270 N.C. 510 , 155 S.E.2d 293, 1967 N.C. LEXIS 1384 (1967).

Action for Wrongful Cutting and Removal of Timber. —

If a cause of action for damages for the wrongful cutting and removal of timber from realty belonging to the deceased, in whole or in part, accrued during his lifetime, the action for damages survives to his executors, and must be brought by his executors rather than by his heirs or devisees. However, if such an injury to the realty was committed after his death, the right of action belongs to his heirs or devisees. Paschal v. Autry, 256 N.C. 166 , 123 S.E.2d 569, 1962 N.C. LEXIS 426 (1962).

Vindictive Damages. —

Though the cause of action for trespass may survive against the representative of the trespasser, no vindictive damages may be recovered in such action. Rippey v. Miller, 33 N.C. 247 , 1850 N.C. LEXIS 39 (1850).

Claims Against State After Posthumous Pardon. —

When estates were attempting to recover for decedents who received posthumous pardons, the claims did not survive their deaths since the pardons were not received during their lifetimes. The claims only accrued upon the issuance of the pardons of innocence. Estate of Jerry Jacobs v. State, 242 N.C. App. 396, 775 S.E.2d 873, 2015 N.C. App. LEXIS 671 (2015).

Survivorship Claim Sufficiently Pled. —

Personal representative sufficiently pled a survivorship claim for a decedent’s pre-death injuries where he made allegations primarily directed to the injuries sustained by, and damages caused to, the decedent in counts separate from a count in which he requested the damages listed in G.S. 28A-18-2 and several of the damages pled were not damages recoverable under G.S. 28A-18-2 ; because the damages were not lumped together, they did not appear to relate to a single claim, but related to separate claims for damages sustained by the decedent due to the nursing home’s negligent actions during his lifetime and the negligence allegedly causing his death. Alston v. Britthaven, Inc., 177 N.C. App. 330, 628 S.E.2d 824, 2006 N.C. App. LEXIS 943 (2006).

Authority to Compromise Claims. —

Charity could not intervene as of right under G.S. 1A-1 , N.C. R. Civ. P. 24(a)(2) in an interpleader action that was filed because the decedent’s ex-wife was the beneficiary on the decedent’s Individual Retirement Account (IRA), but the charity and the decedent’s brother were awarded the IRA in the decedent’s will as: (1) the will gave the personal representative the G.S. ch. 28A and 32 powers, including those in G.S. 28A-18-1(a), G.S. 28A-13-3(a)(15), and G.S. 28A-13-2 , to compromise and release claims; (2) the personal representative and the ex-wife entered into a settlement resolving the action; and (3) the charity did not show that its interest was not adequately represented in the interpleader action. Charles Schwab & Co. v. McEntee, 225 N.C. App. 666, 739 S.E.2d 863, 2013 N.C. App. LEXIS 223 (2013).

Child Custody Action. —

Trial court properly dismissed a grandfather’s complaint for custody of his maternal grandchild because it lacked subject matter jurisdiction to proceed due to a pre-existing child custody action between the child’s paternal grandparents and the child’s now-deceased mother, which did not abate for reasons of constitutional and statutory law and, and, while any relative could seek custody of a child, the grandfather did not file suit against an allegedly unfit parent, and as his complaint was more akin to a request to modify the custody order than it was an initial claim for custody, the proper procedure for the grandfather was to file a motion to intervene and a motion for custody in the grandparents’ custody action. Rivera v. Matthews, 263 N.C. App. 652, 824 S.E.2d 164, 2019 N.C. App. LEXIS 76 (2019).

I.General Consideration

Editor’s Note. —

Many of the cases below were decided under former Chapter 28 or law prior thereto. In addition, most of the cases below were decided prior to the 1993 amendment, which raised to $4,500 the limit on the amount recovered in a wrongful death action that is liable for the payment of hospital and medical expenses of the decedent.

Constitutionality. —

Subdivision (b)(4) is not unconstitutionally vague and therefore violative of N.C. Const., Art. I, § 19. Bowen v. Constructors Equip. Rental Co., 283 N.C. 395 , 196 S.E.2d 789, 1973 N.C. LEXIS 990 (1973).

History of Subsection (b). —

See Bowen v. Constructors Equip. Rental Co., 283 N.C. 395 , 196 S.E.2d 789, 1973 N.C. LEXIS 990 (1973).

Purpose of Section. —

The purpose of this section was to withdraw claims of this kind from the effect and operation of the maxim actio personalis moritur cum persona, and to continue, as the basis of the claim of his estate, the wrongful injury to the person resulting in death. Mitchell v. Talley, 182 N.C. 683 , 109 S.E. 882, 1921 N.C. LEXIS 300 (1921).

Section Creates New Cause of Action. —

The cause of action for personal injuries ceases with the death of the injured party and the action under this section is not a survival of the former but an entirely new action. Harper v. Commissioners of Nash County, 123 N.C. 118 , 31 S.E. 384, 1898 N.C. LEXIS 27 (1898); Bolick v. Southern R.R., 138 N.C. 370 , 50 S.E. 689, 1905 N.C. LEXIS 27 1 (1905). See Taylor v. Cranberry Iron & Coal Co., 94 N.C. 525 , 1886 N.C. LEXIS 96 (1886).

This section creates a new cause of action only in the sense that at common law the right did not survive to the personal representative. Mitchell v. Talley, 182 N.C. 683 , 109 S.E. 882, 1921 N.C. LEXIS 300 (1921).

The wrongful death statute confers a new right of action with damages limited to fair and just compensation for the pecuniary injury resulting from death, recoverable by the personal representative for the benefit of the heirs. Hoke v. Atlantic Greyhound Corp., 226 N.C. 332 , 38 S.E.2d 105, 1946 N.C. LEXIS 446 (1946). See McCoy v. Atlantic C.L.R.R., 229 N.C. 57 , 47 S.E.2d 532, 1948 N.C. LEXIS 414 (1948).

The wrongful death statute confers a new right of action which did not exist before the statute and which at the death of an injured person accrued to the personal representative of the decedent for the benefit of a specific class of beneficiaries. Crawford v. Hudson, 3 N.C. App. 555, 165 S.E.2d 557, 1969 N.C. App. LEXIS 1619 (1969).

No Such Right Existed at Common Law. —

The right of recovery for death by wrongful act did not exist at common law, and rests entirely upon this section. Broadnax v. Broadnax, 160 N.C. 432 , 76 S.E. 216, 1912 N.C. LEXIS 185 (1912); Hinnant v. Tidewater Power Co., 189 N.C. 120 , 126 S.E. 307, 1925 N.C. LEXIS 260 (1925); Wilson v. Massagee, 224 N.C. 705 , 32 S.E.2d 335, 1944 N.C. LEXIS 251 (1944); Webb v. Eggleston, 228 N.C. 574 , 46 S.E.2d 700, 1948 N.C. LEXIS 286 (1948); Lewis v. North Carolina State Hwy. & Pub. Works Comm'n, 228 N.C. 618 , 46 S.E.2d 705, 1948 N.C. LEXIS 287 (1948); Bryant v. Atlantic C.L.R.R., 248 N.C. 43 , 102 S.E.2d 393, 1958 N.C. LEXIS 324 (1958); Horney v. Meredith Swimming Pool Co., 267 N.C. 521 , 148 S.E.2d 554, 1966 N.C. LEXIS 1076 (1966); Miller v. Perry, 307 F. Supp. 633, 1969 U.S. Dist. LEXIS 8692 (E.D.N.C. 1969), rev'd, 456 F.2d 63, 1972 U.S. App. LEXIS 11370 (4th Cir. 1972); Skinner v. Whitley, 281 N.C. 476 , 189 S.E.2d 230, 1972 N.C. LEXIS 1087 (1972); Christenbury v. Hedrick, 32 N.C. App. 708, 234 S.E.2d 3, 1977 N.C. App. LEXIS 2043 (1977).

No right of recovery for death by wrongful act existed at common law. Colyar v. Atlantic States Motor Lines, 231 N.C. 318 , 56 S.E.2d 647, 1949 N.C. LEXIS 525 (1949).

The right to maintain an action for wrongful death is purely statutory. —

No such right existed at common law, and the provisions of this section authorizing the institution and maintenance of such an action are no more binding upon the courts than the provisions of this section which direct how the recovery in such action shall be distributed. Davenport v. Patrick, 227 N.C. 686 , 44 S.E.2d 203, 1947 N.C. LEXIS 517 (1947).

Such Right Is Purely Statutory. —

The right of action for wrongful death is purely statutory. Graves v. Welborn, 260 N.C. 688 , 133 S.E.2d 761, 1963 N.C. LEXIS 817 (1963); Young v. Marshburn, 10 N.C. App. 729, 180 S.E.2d 43, 1971 N.C. App. LEXIS 1711 , cert. denied, 278 N.C. 703 , 181 S.E.2d 603, 1971 N.C. LEXIS 1038 (1971); Burcl v. North Carolina Baptist Hosp., 47 N.C. App. 127, 266 S.E.2d 726, 1980 N.C. App. LEXIS 2981 (1980), rev'd, 306 N.C. 214 , 293 S.E.2d 85, 1982 N.C. LEXIS 1443 (1982); Nelson v. United States, 541 F. Supp. 816, 1982 U.S. Dist. LEXIS 13182 (M.D.N.C. 1982).

In North Carolina the action for wrongful death exists only by virtue of this section. In re Ives' Estate, 248 N.C. 176 , 102 S.E.2d 807, 1958 N.C. LEXIS 359 (1958); Gay v. Thompson, 266 N.C. 394 , 146 S.E.2d 425, 1966 N.C. LEXIS 1359 (1966).

In North Carolina a right of action to recover damages for wrongful death is given by this section and in this jurisdiction the action for wrongful death exists only by virtue of these statutes. In re Miles' Estate, 262 N.C. 647 , 138 S.E.2d 487, 1964 N.C. LEXIS 725 (1964).

Actions for wrongful death are creatures of statute. Reeves v. Hill, 272 N.C. 352 , 158 S.E.2d 529, 1968 N.C. LEXIS 661 (1968).

The right of action for wrongful death exists only by virtue of this section, which defines the right of action, and the basis on which damages may be recovered. Stetson v. Easterling, 274 N.C. 152 , 161 S.E.2d 531, 1968 N.C. LEXIS 743 (1968).

A wrongful death action is a creature of statute and may be brought only as the authorizing statutes permit. Burcl v. North Carolina Baptist Hosp., 306 N.C. 214 , 293 S.E.2d 85, 1982 N.C. LEXIS 1443 (1982).

Because the right to an action for wrongful death rests entirely upon this section, the Wrongful Death Act, it must be asserted in conformity therewith. Bowling v. Combs, 60 N.C. App. 234, 298 S.E.2d 754, 1983 N.C. App. LEXIS 2409 (1983).

Construction. —

This section is not penal but remedial in its nature, and it should be given such construction as will effectuate the intention of the legislature in enacting it. Vance v. Southern R.R., 138 N.C. 460 , 50 S.E. 860, 1905 N.C. LEXIS 283 (1905); Hall v. Southern R.R., 149 N.C. 108 , 62 S.E. 899, 1908 N.C. LEXIS 308 (1908); Christenbury v. Hedrick, 32 N.C. App. 708, 234 S.E.2d 3, 1977 N.C. App. LEXIS 2043 (1977).

Preemption. —

Where decedent was killed in automobile accident, Employee Retirement Income Security Act (ERISA) preempted the operation of North Carolina’s wrongful death statute to the extent that the state law precluded operation of the terms of the “Acts of Third Parties” clause in the plan requiring reimbursement to plan. McInnis v. Provident Life & Accident Ins. Co., 21 F.3d 586, 1994 U.S. App. LEXIS 7094 (4th Cir. 1994).

Application of Section to Actions Pursuant to 42 U.S.C. § 1983. —

There is no federal statutory law governing the measure of damages in wrongful death actions brought pursuant to 42 U.S.C. § 1983, and, therefore, 42 U.S.C. § 1988 compels the use of the law of North Carolina: namely, this section. Bowling v. Oldham, 753 F. Supp. 588, 1990 U.S. Dist. LEXIS 18027 (M.D.N.C. 1990).

The North Carolina wrongful death statute satisfies the two underlying policies of 42 U.S.C. § 1983, as it provides adequate relief for the estate of the deceased, and satisfies the policy of preventing abuses of power by state officials by the availability of punitive damages. Bowling v. Oldham, 753 F. Supp. 588, 1990 U.S. Dist. LEXIS 18027 (M.D.N.C. 1990).

“Person” in former G.S. 28-173 construed to mean one who has become recognized as a person by being born alive. See Cardwell v. Welch, 25 N.C. App. 390, 213 S.E.2d 382, 1975 N.C. App. LEXIS 2270 , cert. denied, 287 N.C. 464 , 215 S.E.2d 623, 1975 N.C. LEXIS 1135 (1975); Yow v. Nance, 29 N.C. App. 419, 224 S.E.2d 292, 1976 N.C. App. LEXIS 2501 , cert. denied, 290 N.C. 312 , 225 S.E.2d 833, 1976 N.C. LEXIS 1080 (1976). But see DiDonato v. Wortman, 320 N.C. 423 , 358 S.E.2d 489, 1987 N.C. LEXIS 2261 (1987) (allowing recovery for the wrongful death of a viable but unborn child) .

For case calling for legislative action under former G.S. 28-173 if it was intended that wrongful death statute include unborn fetuses, see Cardwell v. Welch, 25 N.C. App. 390, 213 S.E.2d 382, 1975 N.C. App. LEXIS 2270 , cert. denied, 287 N.C. 464 , 215 S.E.2d 623, 1975 N.C. LEXIS 1135 (1975); Yow v. Nance, 29 N.C. App. 419, 224 S.E.2d 292, 1976 N.C. App. LEXIS 2501 , cert. denied, 290 N.C. 312 , 225 S.E.2d 833, 1976 N.C. LEXIS 1080 (1976). But see DiDonato v. Wortman, 320 N.C. 423 , 358 S.E.2d 489, 1987 N.C. LEXIS 2261 (1987) (allowing recovery for the wrongful death of a viable but unborn child) .

Municipalities Not Exempt from Section. —

The plain, positive provisions of this section contain no basis for supposing that the Legislature intended to exempt municipalities therefrom. Jackson v. Housing Auth., 73 N.C. App. 363, 326 S.E.2d 295, 1985 N.C. App. LEXIS 3274 (1985), aff'd, 316 N.C. 259 , 341 S.E.2d 523, 1986 N.C. LEXIS 2126 (1986).

This section does not regard the family relation, and is not for the purpose of compensating the families of persons killed by accident. Russell v. Windsor Steamboat Co., 126 N.C. 961 , 36 S.E. 191, 1900 N.C. LEXIS 343 (1900).

Right of Action a Property Right. —

This section gives clear indication of the purpose of the legislature to impress upon the right of action the character of property as a part of the intestate’s estate. Neill v. Wilson, 146 N.C. 242 , 59 S.E. 674, 1907 N.C. LEXIS 32 (1907); In re Miles' Estate, 262 N.C. 647 , 138 S.E.2d 487, 1964 N.C. LEXIS 725 (1964).

This section contemplates only one cause of action, and when the action is brought by the personal representative, the judgment is conclusive on other persons, and the right given by the statute is exhausted. Kendrick v. Cain, 272 N.C. 719 , 159 S.E.2d 33, 1968 N.C. LEXIS 722 (1968).

Section Encompasses Loss of Consortium Claims. —

The trial court properly dismissed plaintiff’s claim brought in her individual capacity for loss of consortium based on the ground that the wrongful death statute encompasses loss of consortium claims, and any common law claim encompassed by the wrongful death statute should have been asserted under this section by the personal representative for the deceased. Keys v. Duke Univ., 112 N.C. App. 518, 435 S.E.2d 820, 1993 N.C. App. LEXIS 1123 (1993).

The tort claim for “loss of consortium”, no matter what damages may be recovered thereunder, is covered under the wrongful death statute, and plaintiff could not, therefore, bring an independent claim for loss of consortium in her action asserting a claim for wrongful death. Keys v. Duke Univ., 112 N.C. App. 518, 435 S.E.2d 820, 1993 N.C. App. LEXIS 1123 (1993).

There is no separate cause of action in the parent to recover for loss of services of a minor child whose death occurs simultaneously with its injury. Gibson v. Campbell, 28 N.C. App. 653, 222 S.E.2d 449, 1976 N.C. App. LEXIS 2793 (1976).

Suit by Parent in Individual Capacity for Expenses of Deceased Child Properly Dismissed. —

Any common-law claim which is now encompassed by this section must be asserted under it, and accordingly it is proper to dismiss an action by the surviving mother of unemancipated minor children who died as a result of an automobile collision, in which action the mother sought recovery in her individual capacity of, inter alia, medical and funeral expenses incurred on behalf of the children. Boulton v. Onslow County Bd. of Educ., 58 N.C. App. 807, 295 S.E.2d 246, 1982 N.C. App. LEXIS 2846 (1982).

Such Expenses Recoverable in Wrongful Death Suit. —

Under common law a personal injury to minor child, proximately caused by negligence of another, gave rise to two distinct causes of action: one by the child for damages for the personal injury, and a second by the parent for, inter alia, expenses incurred for necessary medical treatment of the child. However, when the General Assembly legislates in respect to the subject matter of any common-law rule, the statute supplants the common law and becomes the public policy of this State. The General Assembly has provided that damages recoverable for death by wrongful act include, inter alia, expenses for care, treatment and hospitalization incident to the injury resulting in death and the reasonable funeral expenses of the decedent. Boulton v. Onslow County Bd. of Educ., 58 N.C. App. 807, 295 S.E.2d 246, 1982 N.C. App. LEXIS 2846 (1982).

Where Deceased Is an Infant. —

Under this section the administrator may sue for the death of an infant a few months old. Russell v. Windsor Steamboat Co., 126 N.C. 961 , 36 S.E. 191, 1900 N.C. LEXIS 343 (1900); Davis v. Seaboard Air Line R.R., 136 N.C. 115 , 48 S.E. 591 (1904).

What Constitutes a Cause of Action. —

It is entirely immaterial for the purpose of establishing a cause of action under the provisions of this section whether the act was wanton or cruel. Facts showing a legal duty and neglect thereof on the part of defendant with a resulting injury to the plaintiff are sufficient to constitute a cause of action. Western Union Tel. Co. v. Catlett, 177 F. 71, 1910 U.S. App. LEXIS 4336 (4th Cir. 1910).

No Action Available. —

Where a police officer’s actions in shooting and killing the decedent as he approached the officer while brandishing a knife were reasonable as a matter of law, they could not be negligent or wrongful as required to support an action under this section. Sigman v. Town of Chapel Hill, 161 F.3d 782, 1998 U.S. App. LEXIS 30596 (4th Cir. 1998).

Plaintiff must show failure of defendant to exercise proper care in performance of some legal duty which the defendant owed plaintiff’s testator under the circumstances in which they were placed, and that such negligent breach of duty was the proximate cause of injury which produced death — a cause that produced the result in continuous sequence, and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such result was probable under the existing facts. Tysinger v. Coble Dairy Prods., 225 N.C. 717 , 36 S.E.2d 246, 1945 N.C. LEXIS 403 (1945); Rogers v. Green, 252 N.C. 214 , 113 S.E.2d 364, 1960 N.C. LEXIS 423 (1960); Harris v. Wright, 268 N.C. 654 , 151 S.E.2d 563, 1966 N.C. LEXIS 1278 (1966).

Negligence Per Se. —

Trial court did not err in admitting testimony that decedent did not have motorcycle endorsement at time of accident. Violation of G.S. 20-7 is negligence per se. Ward v. McDonald, 100 N.C. App. 359, 396 S.E.2d 337, 1990 N.C. App. LEXIS 978 (1990), cert. denied, 329 N.C. 505 , 407 S.E.2d 554, 1991 N.C. LEXIS 592 (1991).

Negligence Alone Does Not Create Cause of Action. —

Negligence alone, without pecuniary injury resulting from such death, does not create a cause of action. Gay v. Thompson, 266 N.C. 394 , 146 S.E.2d 425, 1966 N.C. LEXIS 1359 (1966); Harris v. Wright, 268 N.C. 654 , 151 S.E.2d 563, 1966 N.C. LEXIS 1278 (1966); Stetson v. Easterling, 274 N.C. 152 , 161 S.E.2d 531, 1968 N.C. LEXIS 743 (1968); Bowen v. Constructors Equip. Rental Co., 283 N.C. 395 , 196 S.E.2d 789, 1973 N.C. LEXIS 990 (1973).

Gross negligence is “something less than willful and wanton conduct,” and includes “the absence of even slight care,” “indifference to the rights and welfare of others,” “negligence of an aggravated character.” Cowan v. Brian Ctr. Mgt. Corp., 109 N.C. App. 443, 428 S.E.2d 263, 1993 N.C. App. LEXIS 339 (1993).

Effect of Contributory Negligence Upon Recovery. —

G.S. 28A-18-2 provides for survivorship of only those claims that could have been brought by the decedent herself had she lived; when a wrongful death claim is being brought by the administrator of the decedent’s estate, the claim is subject to the affirmative defense of contributory negligence. Davis v. Hulsing Enters., LLC, 370 N.C. 455 , 810 S.E.2d 203, 2018 N.C. LEXIS 64 (2018).

Child Not a “Trespasser.” —

Child who was electrocuted when he entered power company’s cabinet containing high voltage wires located on property on which the company had an easement, who had permission of the landowners to play on the property, was not a trespasser as that term has been defined by our case law, and thus the power company was not entitled to have its legal duty reduced. Cole v. Duke Power Co., 81 N.C. App. 213, 344 S.E.2d 130, 1986 N.C. App. LEXIS 2262 (1986).

Joinder of Action for Wrongful Death of Viable Fetus. —

The action for wrongful death of a viable fetus must be joined with any action based on the same facts brought by the decedent’s parents. DiDonato v. Wortman, 320 N.C. 423 , 358 S.E.2d 489, 1987 N.C. LEXIS 2261 (1987) (reversing) DiDonato v. Wortman, 80 N.C. App. 117, 341 S.E.2d 58 (1986).

Lack of Administrator for Fetus’s Estate Not Grounds for Dismissal Where Clerk Unwilling to Issue Letters of Administration. —

Cause of action for the wrongful death of the fetus was not subject to dismissal on grounds that it was not brought by the personal representative of the deceased as required by subsection (a), where the failure to bring this action in the name of the administrator of the estate was apparently due to the unwillingness of the clerk of court to issue letters of administration for a fetus’s “estate.” The existence of a cause of action for wrongful death is sufficient for the appointment of an administrator, and since a wrongful death action exists for a viable fetus, the clerk should have appointed an administrator to bring the action. Ledford v. Martin, 87 N.C. App. 279, 359 S.E.2d 505 (1987).

The right of action for wrongful death is limited to such as would, if the injured party had lived, have entitled him to an action for damages therefor. Stetson v. Easterling, 274 N.C. 152 , 161 S.E.2d 531, 1968 N.C. LEXIS 743 (1968).

This section makes it a condition precedent to a right of action in a personal representative that the death of the intestate was caused by a wrongful act, neglect or default of the manufacturer “such as would, if the injured person had lived, have entitled him to an action for damages therefor.” Raftery v. Wm. C. Vick Constr. Co., 291 N.C. 180 , 230 S.E.2d 405, 1976 N.C. LEXIS 966 (1976).

The condition precedent, “such as would, if the injured person had lived, have entitled him to an action for damages therefor,” to the maintenance of an action under this section does not, by its express terms, include a time limitation but, upon its face, relates to the nature of the “wrongful act, neglect or default” which caused the death and to the legal capacity of the decedent to sue therefor had he lived. Raftery v. Wm. C. Vick Constr. Co., 291 N.C. 180 , 230 S.E.2d 405, 1976 N.C. LEXIS 966 (1976).

The wrongful death action exists if and only if the decedent could have maintained an action for negligence or some other misconduct if the decedent had survived. Nelson v. United States, 541 F. Supp. 816, 1982 U.S. Dist. LEXIS 13182 (M.D.N.C. 1982).

In determining whether any wrongful death action is maintainable, the Supreme Court has consistently analyzed the question in terms of whether the deceased, had he lived, would have had a claim against defendant for the injuries inflicted. If so, then the estate of the deceased may maintain an action for wrongful death; if not, then the action for wrongful death will not lie. Carver v. Carver, 310 N.C. 669 , 314 S.E.2d 739, 1984 N.C. LEXIS 1697 (1984).

Theory of Liability Is Same as for Tortious Infliction of Personal Injury. —

Although a wrongful death action may be a distinct cause of action from one for negligent infliction of personal injury, the theory or theories of liability and the operative facts from which liability arises are not different. Nelson v. United States, 541 F. Supp. 816, 1982 U.S. Dist. LEXIS 13182 (M.D.N.C. 1982).

Apart from the measure of damages, recovery for wrongful death in North Carolina depends upon the same proof of actionable negligence or misconduct under the general rules of tort liability which would apply to an action strictly for personal injury. Nelson v. United States, 541 F. Supp. 816, 1982 U.S. Dist. LEXIS 13182 (M.D.N.C. 1982).

Barred by Res Judicata. —

Where a decedent’s personal injury suit for asbestos exposure was dismissed after her death, res judicata barred a wrongful death and survivorship suit because it was part of the same transaction or occurrence since the North Carolina Wrongful Death Act, G.S. 28A-18-1 et seq., claim was dependent upon the decedent’s personal injury claim. Taylor v. Norfolk S. Ry. Co., 86 F. Supp. 3d 448, 2015 U.S. Dist. LEXIS 14388 (M.D.N.C. 2015).

No Action Where Decedent Fully Compensated before Death. —

Where the injured party has received in his lifetime full compensation for the injury which resulted in his death, a right of action arising from the same injury will not lie after his death for further damages for the benefit of his estate. Edwards v. Interstate Chem. Co., 170 N.C. 551 , 87 S.E. 635, 1916 N.C. LEXIS 195 (1916).

Killing in Georgia of North Carolina Resident. —

The wrongful death statute of Georgia is not so dissimilar from this section in scope, meaning, and practical application as to deprive the trial courts of this State of jurisdiction to hear and determine a cause for the negligent killing in the state of Georgia of a resident of this State. Rodwell v. Camel City Coach Co., 205 N.C. 292 , 171 S.E. 100, 1933 N.C. LEXIS 535 (1933).

Right Must Be Asserted in Conformity with Section. —

The right to maintain an action for damages for wrongful death must be asserted in conformity with this section. Webb v. Eggleston, 228 N.C. 574 , 46 S.E.2d 700, 1948 N.C. LEXIS 286 (1948); Lewis v. Farm Bureau Mut. Auto. Ins. Co., 243 N.C. 55 , 89 S.E.2d 788, 1955 N.C. LEXIS 712 (1955).

Pleading Requirements. —

While a request for damages based on a decedent’s pain and suffering and hospital care could have been construed as invoking an action for survival, the plaintiff only intended to go forward with a wrongful death claim if the complaint stated a claim for wrongful death of the decedent and pled all the damages listed in G.S. 28A-18-2(b), with the exception of nominal damages, and there was no indication in the complaint that the damages were to be distributed to his estate as opposed to his heirs. Locust v. Pitt County Mem'l Hosp., 154 N.C. App. 103, 571 S.E.2d 668, 2002 N.C. App. LEXIS 1410 (2002), rev'd, 358 N.C. 113 , 591 S.E.2d 543, 2004 N.C. LEXIS 20 (2004).

Where decedent’s daughter repeatedly requested that wrongful death action be brought, and offered to pay all expenses for it, but was confronted with alleged collusion and willful obstruction on the part of administratrix and attorney, and within the two-year statute of limitations period, filed action against administratrix, attorney and insurer alleging breach of fiduciary duties and collusion, her contributory negligence, if any, in failing to seek removal of administratrix, was not such as to warrant dismissal under G.S. 1A-1 , Rule 12(b)(6). Jenkins v. Wheeler, 69 N.C. App. 140, 316 S.E.2d 354, 1984 N.C. App. LEXIS 3397 (1984).

Failure to List Possible Wrongful Death Action as Estate Asset Held Malpractice. —

Attorney who was retained by decedent’s administratrix (sister of decedent’s husband) owed a duty to decedent’s natural daughter to use reasonable care in representing the estate, and daughter’s allegation that he violated that duty by failing to list possible wrongful death action against decedent’s husband as an asset of decedent’s estate, by continuing to represent the estate after administratrix also became the representative of decedent’s husband when he committed suicide, and by colluding with other defendants, stated a cause of action in tort for attorney malpractice. Jenkins v. Wheeler, 69 N.C. App. 140, 316 S.E.2d 354, 1984 N.C. App. LEXIS 3397 (1984).

This section controls over the provisions of the Workers’ Compensation Act, G.S. 97-1 et seq. Byers v. North Carolina State Hwy. Comm'n, 3 N.C. App. 139, 164 S.E.2d 535, 1968 N.C. App. LEXIS 811 (1968), aff'd, 275 N.C. 229 , 166 S.E.2d 649, 1969 N.C. LEXIS 377 (1969).

Workers’ Compensation Act does not create two causes of action, one for the employee’s estate and the other for the employer and insurance carrier. The right to bring action for damages for wrongful death is conferred by this section. The compensation act merely governs the respective rights of the employee’s estate, the employer and the insurance carrier to maintain an action for damages against third parties. Groce v. Rapidair, Inc., 305 F. Supp. 1238, 1969 U.S. Dist. LEXIS 10126 (W.D.N.C. 1969).

No Conflict with G.S. 97-10.2(f)(1)c. —

There is no conflict in the language in this section which prohibits use of the wrongful death recovery to pay a debt of the decedent and the language in G.S. 97-10.2(f)(1)c which directs that a portion of the recovery be applied to the reimbursement of the employer for benefits paid under award of the Industrial Commission. Byers v. North Carolina State Hwy. Comm'n, 3 N.C. App. 139, 164 S.E.2d 535, 1968 N.C. App. LEXIS 811 (1968), aff'd, 275 N.C. 229 , 166 S.E.2d 649, 1969 N.C. LEXIS 377 (1969).

If an employee’s action would be barred by the Workers’ Compensation Act, then a wrongful death action brought by the employee’s representative is also barred. McAllister v. Cone Mills Corp., 88 N.C. App. 577, 364 S.E.2d 186, 1988 N.C. App. LEXIS 76 (1988).

Complaint Barred by Workers’ Compensation Act. —

Wrongful death complaint alleging that defendant, decedent’s employer, negligently required decedent to perform tasks which exposed decedent to known carcinogens, thereby causing decedent’s cancer of the bladder and resulting death, came within the language of G.S. 97-53(13) and was barred by the Workers’ Compensation Act. McAllister v. Cone Mills Corp., 88 N.C. App. 577, 364 S.E.2d 186, 1988 N.C. App. LEXIS 76 (1988).

Liability to the general public of a host for the torts of his intoxicated guest. See Chastain v. Litton Sys., 694 F.2d 957, 1982 U.S. App. LEXIS 23632 (4th Cir. 1982), cert. denied, 462 U.S. 1106, 103 S. Ct. 2454, 77 L. Ed. 2d 1334, 1983 U.S. LEXIS 417 (1983).

Employer’s Liability for Death Caused by Employee Who Became Intoxicated at Company Party. —

See Chastain v. Litton Sys., 694 F.2d 957, 1982 U.S. App. LEXIS 23632 (4th Cir. 1982), cert. denied, 462 U.S. 1106, 103 S. Ct. 2454, 77 L. Ed. 2d 1334, 1983 U.S. LEXIS 417 (1983).

Claim Against Provider of Alcohol Barred by Decedent’s Negligence. —

Plaintiff’s wrongful death claim against a provider of alcohol alleging wilful and wanton negligence for serving the visibly intoxicated decedent alcohol after being requested to refrain from serving him was barred by the decedent’s own actions in driving his vehicle while highly intoxicated. Sorrells v. M.Y.B. Hospitality Ventures, 332 N.C. 645 , 423 S.E.2d 72, 1992 N.C. LEXIS 574 (1992).

Trial court properly granted the hotel owners’ motion to dismiss the husband’s wrongful death claim where the decedent’s consumption of alcohol and the owners’ actions in serving the decedent rose to the same level of negligence, the decedent’s resulting contributory negligence thereby barred the husband’s common law dram shop claim. Davis v. Hulsing Enters., LLC, 370 N.C. 455 , 810 S.E.2d 203, 2018 N.C. LEXIS 64 (2018).

Personal Representative Has Authority and Responsibility. —

The personal representative who institutes a wrongful death action is not a mere figurehead or naked trustee but has authority as well as responsibility. First Union Nat'l Bank v. Hackney, 266 N.C. 17 , 145 S.E.2d 352, 1965 N.C. LEXIS 1386 (1965); Miller v. Perry, 307 F. Supp. 633, 1969 U.S. Dist. LEXIS 8692 (E.D.N.C. 1969), rev'd, 456 F.2d 63, 1972 U.S. App. LEXIS 11370 (4th Cir. 1972).

Authority to Compromise. —

Ordinarily, an executor or administrator has the right to compromise any disputed or doubtful claim of his decedent provided he acts honestly and exercises the care of an ordinarily prudent person, and this rule is applicable to a purely statutory cause of action for wrongful death. McGill v. Bison Fast Freight, Inc., 245 N.C. 469 , 96 S.E.2d 438, 1957 N.C. LEXIS 594 (1957).

An administrator has the right to compromise a disputed claim if he acts in good faith and exercises the care which an ordinarily sensible and prudent man would exercise in dealing with his own property under like circumstances. Forsyth County v. Barneycastle, 18 N.C. App. 513, 197 S.E.2d 576, 1973 N.C. App. LEXIS 1925 , cert. denied, 283 N.C. 752 , 198 S.E.2d 722, 1973 N.C. LEXIS 1068 (1973).

A covenant not to sue, procured by one tort-feasor, does not release the other from liability. Kendrick v. Cain, 272 N.C. 719 , 159 S.E.2d 33, 1968 N.C. LEXIS 722 (1968).

Release of one joint tort-feasor ordinarily releases them all. Kendrick v. Cain, 272 N.C. 719 , 159 S.E.2d 33, 1968 N.C. LEXIS 722 (1968).

Action Not Maintained Since Children Could Not Have Recovered For Injuries If They Had Lived. —

The cause of action for the children’s wrongful death, where the children were killed by their mother and her boyfriend as they were fleeing from police shortly before the truck they were in was blown up during the course of a gun battle and high speed chase with police, could not be maintained because the children could not have recovered for their injuries if they had lived, and the first requisite of a wrongful death action in this State is that the decedent could have recovered for his injuries if he had lived. Lynch v. North Carolina Dep't of Justice, 93 N.C. App. 57, 376 S.E.2d 247, 1989 N.C. App. LEXIS 80 (1989).

Action Against Pharmacist. —

While a pharmacist has no duty to advise absent knowledge of the circumstances, once a pharmacist is alerted to specific facts and he or she undertakes to advise a customer, the pharmacist then has a duty to advise correctly; therefore, where plaintiff alleged, among other things, that her decedent “sought out and was relying upon the skill, judgment and expertise of defendant with respect to the safety of taking the drug Indocin given the fact that plaintiff’s intestate suffered the aforementioned medical condition,” she stated a claim upon which relief could be granted. Ferguson v. Williams, 92 N.C. App. 336, 374 S.E.2d 438, 1988 N.C. App. LEXIS 1049 (1988).

Action Against Physician Barred by Settlement with Original Tort-Feasors. —

Where a plaintiff institutes an action to recover damages for the wrongful death of his intestate against persons alleged to be solely responsible for intestate’s injuries and death, and thereafter the action is compromised by the entry of a consent judgment for a substantial sum, the judgment is a bar to the plaintiff’s right to maintain a subsequent action for the wrongful death of his intestate against a physician or surgeon for negligent treatment of the original injuries, such treatment being known to plaintiff when the first suit was filed. Bell v. Hankins, 249 N.C. 199 , 105 S.E.2d 642, 1958 N.C. LEXIS 450 (1958).

Writ of Attachment May Issue. —

A writ of attachment will issue under G.S. 1-440.1 to enforce the right created by this section. Mitchell v. Talley, 182 N.C. 683 , 109 S.E. 882, 1921 N.C. LEXIS 300 (1921).

Nonsuit. —

In a civil action under this and the succeeding section to recover damages for alleged wrongful death, where issues of fact are raised which the jury alone may decide, it is error for the court to allow a motion for judgment as of nonsuit. Henson v. Wilson, 225 N.C. 417 , 35 S.E.2d 245, 1945 N.C. LEXIS 334 (1945).

Nonsuit held proper in action for wrongful death resulting when intestate drove into the side of a train which had been standing at nighttime, blocking the crossing, for some 30 seconds prior to the injury, with its ground lights, its platform light, and cab lights burning. Morris v. Winston-Salem Southbound Ry., 265 N.C. 537 , 144 S.E.2d 598, 1965 N.C. LEXIS 1036 (1965).

The burden of proving actionable negligence in an action for damages for wrongful death grounded in negligence is, of course, on the party seeking recovery. But if the evidence, that offered by both plaintiff and defendant, construed in the light most favorable to the party with the burden of proof, is sufficient to make out a prima facie case of actionable negligence, a motion for nonsuit should be denied and the case submitted to the jury. Maynor v. Townsend, 2 N.C. App. 19, 162 S.E.2d 677, 1968 N.C. App. LEXIS 867 (1968).

Directed Verdict. —

In an action for wrongful death, a directed verdict for the defendant on the ground of contributory negligence should be granted when, and only when, the evidence, taken in the light most favorable to plaintiff, establishes the contributory negligence of plaintiff’s intestate so clearly that no other reasonable inference or conclusion may be drawn therefrom. Bowen v. Constructors Equip. Rental Co., 283 N.C. 395 , 196 S.E.2d 789, 1973 N.C. LEXIS 990 (1973).

Citizenship of Beneficiaries Is Controlling for Diversity Purposes. —

When a resident ancillary administrator is required to represent the interests of noncitizen beneficiaries by virtue of the laws of the state in which the claim arose, and his duties are as limited as those imposed upon him by this section, the citizenship of the beneficiaries is controlling for diversity purposes. Miller v. Perry, 456 F.2d 63, 1972 U.S. App. LEXIS 11370 (4th Cir. 1972).

The citizenship of the administrator does not defeat diversity jurisdiction in an action under this section brought by a North Carolina ancillary administrator against North Carolina defendants to recover for the death of a nonresident for the benefit of nonresident distributees. Miller v. Perry, 456 F.2d 63, 1972 U.S. App. LEXIS 11370 (4th Cir. 1972).

Noncitizen Entitled to Federal Forum. —

Diversity jurisdiction exists for the protection of the noncitizen who is obliged to sue or to be sued in the state of his adversary. It is for that reason that state statutes or decisions that require a noncitizen to appoint an in-state representative should not have the effect of depriving the noncitizen of the federal forum that Congress has provided him. Miller v. Perry, 456 F.2d 63, 1972 U.S. App. LEXIS 11370 (4th Cir. 1972).

Payment of Expenses of Suit from Assets of Estates. —

With the 1985 amendment of subsection (a) of this section, the Legislature has chosen to allow reasonable and necessary expenses, excluding attorneys’ fees, incurred in pursuing a wrongful death action to be paid from the assets of the deceased’s estate. If there is any recovery from the wrongful death action, the recovery must first be applied to reimburse the estate for the expenses paid from its assets in pursuing the action. In re Estate of Proctor, 79 N.C. App. 646, 340 S.E.2d 138, 1986 N.C. App. LEXIS 2085 (1986).

Prior to the 1985 amendment to subsection (a) of this section, there was no statutory authority for paying out of a decedent’s estate the reasonable and necessary expenses incurred in pursuing a wrongful death action. Thus, on February 1, 1985, clerk properly denied petition seeking authorization of payment of litigation expenses out of decedent’s estate, and superior court was correct in affirming the clerk’s order. However, following the July 5, 1985 amendment there was nothing to prevent decedent’s personal representatives from filing a new petition seeking to have those same expenses paid from the deceased’s estate. In re Estate of Proctor, 79 N.C. App. 646, 340 S.E.2d 138, 1986 N.C. App. LEXIS 2085 (1986).

Contributory negligence of decedent, who was operating his vehicle in an impaired condition in violation of G.S. 20-138.1 , was a defense to a wrongful death claim under this section based on defendants’ alleged negligence in selling alcohol to an intoxicated person. Clark v. Inn West, 89 N.C. App. 275, 365 S.E.2d 682, 1988 N.C. App. LEXIS 293 (1988), rev'd, 324 N.C. 415 , 379 S.E.2d 23, 1989 N.C. LEXIS 249 (1989).

Trial court properly granted summary judgment to a marina owner, a general contractor, and a subcontractor in administrators’ G.S. 28A-18-2 wrongful death action, because the decedent’s contributory negligence, in using an electric drill near water without ground fault circuit interrupter protection, barred the administrators’ claims as a matter of law. Thorpe v. TJM Ocean Isle Partners LLC, 222 N.C. App. 262, 730 S.E.2d 268, 2012 N.C. App. LEXIS 931 , superseded, modified, 223 N.C. App. 201, 733 S.E.2d 185, 2012 N.C. App. LEXIS 1190 (2012).

Effect of Medicare. —

The Wrongful Death Act’s $1,500 limitation on a health care provider’s right to recover a decedent’s medical expenses is preempted by Medicare’s secondary payer provisions. Cox v. Shalala, 112 F.3d 151, 1997 U.S. App. LEXIS 7923 (4th Cir. 1997).

Jury Issues Raised. —

Personal representative’s wrongful death and survivorship claims could be brought in the same suit and separate issues should have been presented to the jury on whether a nursing home’s negligence caused the decedent’s pre-death injuries and wrongful death; the nursing home’s claim that a personal representative was required to delineate which of the decedent’s pressure sores caused his death and which sores caused him pain and suffering prior to his death was rejected as if the jury determined that the decedent died of Alzheimer’s disease, rather than from an infection from the pressure sores, it could still reasonably determine that the nursing home’s negligence caused the pressure sores and that any or all of those sores caused the decedent pain and suffering prior to his death. Alston v. Britthaven, Inc., 177 N.C. App. 330, 628 S.E.2d 824, 2006 N.C. App. LEXIS 943 (2006).

Alternative Survivorship and Wrongful Death Claims. —

Wrongful death and survivorship claims may be brought as alternative claims for the same negligent acts. Alston v. Britthaven, Inc., 177 N.C. App. 330, 628 S.E.2d 824, 2006 N.C. App. LEXIS 943 (2006).

Survivorship and Wrongful Death Actions Properly Alleged. —

Personal representative was entitled to proceed on both a survivorship claim and a wrongful death claim where he alleged that a nursing home’s negligence resulted not only in the decedent’s death, but also in injury, pain and suffering, and medical expenses prior to his death. Alston v. Britthaven, Inc., 177 N.C. App. 330, 628 S.E.2d 824, 2006 N.C. App. LEXIS 943 (2006).

Action Erroneously Brought Under Survivorship Statute. —

Trial court properly granted summary judgment to defendant as to an insurance company’s action under the survivorship statute, G.S. 28A-18-1 , because the claim was based on a single negligent act of defendant, and thus the sole remedy available was under the wrongful death statute, G.S. 28A-18-2 , and any wrongful death action was barred by the statute of limitations under G.S. 1-53(4) . State Auto Ins. Co. v. Blind, 185 N.C. App. 707, 650 S.E.2d 25, 2007 N.C. App. LEXIS 1940 (2007).

Admiralty. —

Administrators’ wrongful death action was governed by G.S. 28A-18-2 rather than admiralty law because the administrators’ allegations against a marina owner, a general contractor, and a subcontractor were for violations of nonmaritime duties imposed by state law. Thorpe v. TJM Ocean Isle Partners LLC, 222 N.C. App. 262, 730 S.E.2d 268, 2012 N.C. App. LEXIS 931 , superseded, modified, 223 N.C. App. 201, 733 S.E.2d 185, 2012 N.C. App. LEXIS 1190 (2012).

II.Limitation of the Action

Two-year Limitation. —

The period prescribed for the commencement of an action for wrongful death under this section is two years. High v. Broadnax, 271 N.C. 313 , 156 S.E.2d 282, 1967 N.C. LEXIS 1191 (1967).

Former Time Limit Was Condition Precedent Rather than Statute of Limitation. —

Up to the time of the amendments of 1951 to the former wrongful death statute and G.S. 1-53 , it had consistently been held that the time limitation in this section was not a statute of limitations, but rather a condition precedent to maintenance of an action. The effect of the amendments was to remove from the Wrongful Death Act the time limitation and make the act subject to the statute of limitations of two years in G.S. 1-53 . McCrater v. Stone & Webster Eng'g Corp., 248 N.C. 707 , 104 S.E.2d 858, 1958 N.C. LEXIS 382 (1958).

Since the enactment of the 1951 amendment to the former wrongful death statute, the time within which a wrongful death action may be commenced is not an integral part of the right of action or a condition precedent thereto but is an ordinary (two-year) statute of limitations under G.S. 1-53(4) . Stamey v. Rutherfordton Elec. Membership Corp., 249 N.C. 90 , 105 S.E.2d 282, 1958 N.C. LEXIS 422 (1958).

Prior to the enactment of G.S. 1-53(4) , and the 1951 amendment to the former wrongful death statute, the institution of an action for wrongful death within one year after such death was a condition precedent to maintaining the action. All other requirements of the section were also strictly construed. The amendment removed the time limitation as a condition annexed to the cause of action and made it a two-year statute of limitations. Graves v. Welborn, 260 N.C. 688 , 133 S.E.2d 761, 1963 N.C. LEXIS 817 (1963).

Section 1-53 and the former wrongful death statute were amended in 1951 so as to remove from the latter section the provision previously contained therein fixing the period of time in which an action for damages for wrongful death must be instituted and so as to make such action subject to the two-year statute of limitations set forth in G.S. 1-53 . The effect of the amendment was to make the time limitation a statute of limitations and no longer a condition precedent to the right to bring and maintain the action. Kinlaw v. Norfolk S. Ry., 269 N.C. 110 , 152 S.E.2d 329, 1967 N.C. LEXIS 1031 (1967).

Delay Less Than Period Is Not Laches of Itself. —

Mere delay of petitioner in commencing his action for damages for wrongful death, which does not amount to a bar of the statute of limitations, does not of itself constitute laches, where the delay has not worked an injury or prejudice or disadvantage to the administratrix c.t.a. of the estate, and the clerk has found no facts that petitioner’s delay would work prejudice or injury to the estate of the deceased. In re Miles' Estate, 262 N.C. 647 , 138 S.E.2d 487, 1964 N.C. LEXIS 725 (1964).

Action by Ancillary Administrator. —

The fact that an action for wrongful death is brought by an ancillary administrator appointed in this State does not constitute the action accruing to a resident of this State within the meaning of the proviso to G.S. 1-21 . Broadfoot v. Everett, 270 N.C. 429 , 154 S.E.2d 522, 1967 N.C. LEXIS 1370 (1967).

Where a complaint to recover damages under a state wrongful death act was timely filed by an ancillary administrator appointed by a state court without jurisdiction to do so, the complaint could be amended under G.S. 1A-1 , Rule 17(a) at a time when a new suit would be barred so as to allege the subsequent effective appointment of the same person as ancillary administrator by a state court having jurisdiction. McNamara v. Kerr-McGee Chem. Corp., 328 F. Supp. 1058, 1971 U.S. Dist. LEXIS 12476 (E.D.N.C. 1971).

Amendment Not Introducing New Cause of Action. —

Where, in an action for wrongful death, the complaint discloses that the action was instituted within the statutory period, but plaintiff is thereafter permitted to amend the defective statement of his good cause of action by particularizing the acts of negligence complained of, the amendment does not introduce a new cause of action, and the cause is not barred by this section. Davis v. Rhodes, 231 N.C. 71 , 56 S.E.2d 43, 1949 N.C. LEXIS 485 (1949).

Amendment or Substitution of Proper Party Relates Back. —

Amendment or substitution of the proper party under G.S. 1A-1 , Rule 15(a) and (c) and G.S. 1A-1 , Rule 17(a), may be made at any time before hearing to cure a lack of letters of administration, and later appointments of this nature will relate back and validate the proceedings from the beginning regardless of the statute of limitations. McNamara v. Kerr-McGee Chem. Corp., 328 F. Supp. 1058, 1971 U.S. Dist. LEXIS 12476 (E.D.N.C. 1971).

Action Commenced upon False Allegation of Appointment Cannot Be Validated Following Expiration of Statute of Limitations. —

A party who has not been appointed as administratrix and has not offered herself for qualification may not, upon a false allegation that she has qualified as administratrix, commence an action for wrongful death and, following the expiration of the statute of limitations, validate that action by a subsequent appointment as administratrix. Reid v. Smith, 5 N.C. App. 646, 169 S.E.2d 14, 1969 N.C. App. LEXIS 1416 (1969).

Action Commenced under Mistaken Belief of Appointment May Be Validated by Subsequent Appointment. —

Where a widow institutes an action as administratrix, for damages for the wrongful death of her husband, under the mistaken belief that she had been duly appointed and had qualified as such, thereafter discovers her error and amends her petition so as to show that she was appointed administratrix after the expiration of the statute of limitations applicable to such action, the amended petition will relate back to the date of the filing of the petition, and the action will be deemed commenced within the time limited by statute. Reid v. Smith, 5 N.C. App. 646, 169 S.E.2d 14, 1969 N.C. App. LEXIS 1416 (1969).

Widow’s belated qualification as administratrix did not relate back to the date of the filing of the suit when no attempt was previously made to qualify as administrator in North Carolina. Johnson v. Wachovia Bank & Trust Co., 22 N.C. App. 8, 205 S.E.2d 353, 1974 N.C. App. LEXIS 2216 (1974).

Medical Malpractice. —

Four year statute of repose for medical malpractice actions, G.S. 1-15(c) (2003), applied to wrongful death cases; a wrongful death medical malpractice suit filed within two years of decedent’s death, but more than four years after doctor’s last act, was properly dismissed as untimely. Udzinski v. Lovin, 358 N.C. 534 , 597 S.E.2d 703, 2004 N.C. LEXIS 658 (2004).

Wrongful death suit was stayed pending binding arbitration because plaintiff, as administrator of a decedent’s estate, failed to establish any contract defenses that would have otherwise invalidated the arbitration agreement entered into by the decedent regarding her medical treatment for benign liver tumors; because decedent’s ability to recover was limited in form to arbitration by her execution of the agreement with defendants, her estate was equally bound by the arbitration agreement. Wilkerson v. Nelson, 395 F. Supp. 2d 281, 2005 U.S. Dist. LEXIS 11212 (M.D.N.C. 2005).

III.Parties to the Action

Decedent’s personal representative is the proper party plaintiff in a wrongful death action. Brendle v. General Tire & Rubber Co., 408 F.2d 116, 1969 U.S. App. LEXIS 13323 (4th Cir. 1969).

Suit Must Be Brought by Personal Representative. —

The personal representative of the deceased, his executor or administrator, etc., can alone maintain an action for damages for his wrongful death under the provisions of this section. Hanes v. Southern Pub. Utils. Co., 191 N.C. 13 , 131 S.E. 402, 1926 N.C. LEXIS 2 (1926). See Hood v. AT & T Co., 162 N.C. 70 , 77 S.E. 1096, 1913 N.C. LEXIS 313 (1913); White v. Holding, 217 N.C. 329 , 7 S.E.2d 825, 1940 N.C. LEXIS 2 33 (1940).

While any sum recovered is not a part of decedent’s estate, such sum can only be recovered in the name of the personal representative, and must be distributed under laws of intestacy in this State. Harrison v. Carter, 226 N.C. 36 , 36 S.E.2d 700, 1946 N.C. LEXIS 379 (1946) (citing) Neill v. Wilson, 146 N.C. 242 , 59 S.E. 674, 1907 N.C. LEXIS 32 (1907); Hines v. Foundation Co., 196 N.C. 322 , 145 S.E. 612, 1928 N.C. LEXIS 361 (1928).

Under this section, the only person who can sue is the personal representative of the deceased. Journigan v. Little River Ice Co., 233 N.C. 180 , 63 S.E.2d 183, 1951 N.C. LEXIS 560 (1951).

The right of action conferred by this section vests in the personal representative of the deceased. Horney v. Meredith Swimming Pool Co., 267 N.C. 521 , 148 S.E.2d 554, 1966 N.C. LEXIS 1076 (1966); Stetson v. Easterling, 274 N.C. 152 , 161 S.E.2d 531, 1968 N.C. LEXIS 743 (1968); Miller v. Perry, 307 F. Supp. 633, 1969 U.S. Dist. LEXIS 8692 (E.D.N.C. 1969), rev'd, 456 F.2d 63, 1972 U.S. App. LEXIS 11370 (4th Cir. 1972).

Action for wrongful death may be brought only by the executor, administrator, or collector of the decedent. Graves v. Welborn, 260 N.C. 688 , 133 S.E.2d 761, 1963 N.C. LEXIS 817 (1963); First Union Nat'l Bank v. Hackney, 266 N.C. 17 , 145 S.E.2d 352, 1965 N.C. LEXIS 1386 (1965); Miller v. Perry, 307 F. Supp. 633, 1969 U.S. Dist. LEXIS 8692 (E.D.N.C. 1969), rev'd, 456 F.2d 63, 1972 U.S. App. LEXIS 11370 (4th Cir. 1972); Merchants Distribs., Inc. v. Hutchinson, 16 N.C. App. 655, 193 S.E.2d 436, 1972 N.C. App. LEXIS 1802 (1972); Bowen v. Constructors Equip. Rental Co., 283 N.C. 395 , 196 S.E.2d 789, 1973 N.C. LEXIS 990 (1973); Burcl v. North Carolina Baptist Hosp., 306 N.C. 214 , 293 S.E.2d 85, 1982 N.C. LEXIS 1443 (1982).

The right of action under this section is for the personal representative of the deceased only. The right of action for wrongful death, being conferred by statute at death, never belonged to the deceased. Miller v. Perry, 307 F. Supp. 633, 1969 U.S. Dist. LEXIS 8692 (E.D.N.C. 1969), rev'd, 456 F.2d 63, 1972 U.S. App. LEXIS 11370 (4th Cir. 1972).

Nobody other than the executor, administrator, or collector of an estate can maintain an action for wrongful death. Young v. Marshburn, 10 N.C. App. 729, 180 S.E.2d 43, 1971 N.C. App. LEXIS 1711 , cert. denied, 278 N.C. 703 , 181 S.E.2d 603, 1971 N.C. LEXIS 1038 (1971).

Under the Wrongful Death Act, the administrator of an intestate, or the executor of one who dies testate, may institute an action for wrongful death; and he does so as the representative of the estate. Bowling v. Combs, 60 N.C. App. 234, 298 S.E.2d 754, 1983 N.C. App. LEXIS 2409 (1983).

In His Official Capacity. —

The statute requires the suit to be brought by the administrator in his official and not in his private or individual capacity. He must sue as administrator. Hall v. Southern R.R., 146 N.C. 345 , 59 S.E. 879, 1907 N.C. LEXIS 54 (1907).

The personal representative alone can maintain the action, and only in his official capacity. He sues in his own right and not en autre droit. McCoy v. Atlantic C.L.R.R., 229 N.C. 57 , 47 S.E.2d 532, 1948 N.C. LEXIS 414 (1948). See Christian v. Atlantic & N.C.R.R., 136 N.C. 321 , 48 S.E. 743, 1904 N.C. LEXIS 267 (1904).

Widow, as such, has no right of action for death of her husband. Graves v. Welborn, 260 N.C. 688 , 133 S.E.2d 761, 1963 N.C. LEXIS 817 (1963).

Widow Cannot Maintain Action. —

Under this section an action cannot be maintained by a widow as such, but must be brought by the personal representative of the deceased. Bennett v. North Carolina R.R., 159 N.C. 345 , 74 S.E. 883, 1911 N.C. LEXIS 421 (1911); Craig v. Suncrest Lumber Co., 189 N.C. 137 , 126 S.E. 312, 1925 N.C. LEXIS 262 (1925).

Spouse Cannot Maintain Action for Death of Spouse. —

A husband as such cannot sue for the wrongful death of his wife. Hood v. AT & T Co., 162 N.C. 70 , 77 S.E. 1096, 1913 N.C. LEXIS 313 (1913).

Parent Cannot Maintain Action. —

A father cannot maintain an action in his individual capacity for the wrongful death of his daughter resulting from seduction. Scarlett v. Norwood, 115 N.C. 284 , 20 S.E. 459, 1894 N.C. LEXIS 227 (1894).

A father cannot maintain an action in his individual capacity for the death of his son. Killian v. Southern R.R., 128 N.C. 261 , 38 S.E. 873, 1901 N.C. LEXIS 380 (1901).

Action by the personal representative of deceased stillborn child was not barred by the release executed by child’s parents, as the release by its terms bound only themselves and their heirs and assigns as to their personal claims and did not purport to settle or affect a claim for the child’s wrongful death, and since under North Carolina law the parents, though the child’s next of kin, had no authority to either assert or settle a claim for the child’s wrongful death; only the child’s personal representative had that authority. Greer v. Parsons, 103 N.C. App. 463, 405 S.E.2d 921, 1991 N.C. App. LEXIS 800 (1991), aff'd, 331 N.C. 368 , 416 S.E.2d 174, 1992 N.C. LEXIS 275 (1992).

Action by One Not Personal Representative Should Be Dismissed. —

If an action for wrongful death is instituted by one other than the personal representative of a decedent, duly appointed in this State, it should be dismissed, and a separate and independent action instituted by such representative. Graves v. Welborn, 260 N.C. 688 , 133 S.E.2d 761, 1963 N.C. LEXIS 817 (1963); Merchants Distribs., Inc. v. Hutchinson, 16 N.C. App. 655, 193 S.E.2d 436, 1972 N.C. App. LEXIS 1802 (1972).

If an action for wrongful death is instituted by one other than the personal representative of a decedent, duly appointed in this State, it should be dismissed. Young v. Marshburn, 10 N.C. App. 729, 180 S.E.2d 43, 1971 N.C. App. LEXIS 1711 , cert. denied, 278 N.C. 703 , 181 S.E.2d 603, 1971 N.C. LEXIS 1038 (1971).

Court Has No Authority to Convert It to New Action by Admission of Party. —

The court has no authority, over objection, to convert a pending action for wrongful death which cannot be maintained into a new and independent action by admitting a party who is solely interested as plaintiff. Graves v. Welborn, 260 N.C. 688 , 133 S.E.2d 761, 1963 N.C. LEXIS 817 (1963).

Action Commences from Time Personal Representative Joined. —

Should the personal representative be permitted to become a party to an unauthorized action for wrongful death, the action is deemed to have been commenced only from the time he became a party. Graves v. Welborn, 260 N.C. 688 , 133 S.E.2d 761, 1963 N.C. LEXIS 817 (1963).

The real party in interest in an action under this section is not the administrator, but the beneficiary under the statute for whom the recovery is sought. Davenport v. Patrick, 227 N.C. 686 , 44 S.E.2d 203, 1947 N.C. LEXIS 517 (1947); In re Ives' Estate, 248 N.C. 176 , 102 S.E.2d 807, 1958 N.C. LEXIS 359 (1958).

Although an action for wrongful death must be brought by the personal representative of the deceased, the personal representative is not the real party in interest and the action does not accrue in his favor. Broadfoot v. Everett, 270 N.C. 429 , 154 S.E.2d 522, 1967 N.C. LEXIS 1370 (1967).

The personal representative of a decedent, as such, has no beneficial interest in a recovery and is therefore not the real party in interest. Long v. Coble, 11 N.C. App. 624, 182 S.E.2d 234, 1971 N.C. App. LEXIS 1600 , cert. denied, 279 N.C. 395 , 183 S.E.2d 246, 1971 N.C. LEXIS 822 (1971).

In a wrongful death action, the real parties in interest were the beneficiaries as defined in the Wrongful Death Act, who were the same persons who would have received property had the decedent died intestate; where a widow, who was the decedent’s sole intestate beneficiary, had abandoned the decedent before his death, she was not entitled to a wrongful death recovery, and since the remaining beneficiaries did not succeed to a full 100 percent, but only received their original percentage, there were no beneficiaries to the wrongful death claim. Locust v. Pitt County Mem'l Hosp., 154 N.C. App. 103, 571 S.E.2d 668, 2002 N.C. App. LEXIS 1410 (2002), rev'd, 358 N.C. 113 , 591 S.E.2d 543, 2004 N.C. LEXIS 20 (2004).

Trial court erred in granting a city’s motion to dismiss an administratrix’s wrongful death action on the ground that it was barred by the statute of limitations, G.S. 1-53(4) , because an application for an extension of the time to file the complaint pursuant to N.C. R. Civ. P. 3 gave the city notice that the lawsuit involved the death of the decedent when fire department employees allegedly failed to provide appropriate emergency care, and the administratrix’s participation in the lawsuit once she became administratrix was sufficient to ratify the filing of the summons and application for extension of time; under N.C. R. Civ. P. 17(a), that ratification related back to the filing of the summons, rendering the wrongful death action timely. Estate of Tallman v. City of Gastonia, 200 N.C. App. 13, 682 S.E.2d 428, 2009 N.C. App. LEXIS 1565 (2009).

Necessity for Proof Where Plaintiff’s Capacity Denied. —

Nonsuit is properly entered in an action for wrongful death when plaintiff’s allegation that she was duly qualified and acting administratrix of the deceased is denied in the answer and plaintiff offers no evidence in support of her allegation. Carr v. Lee, 249 N.C. 712 , 107 S.E.2d 544, 1959 N.C. LEXIS 415 (1959).

False Allegation of Appointment Cannot Be Validated by Subsequent Appointment. —

One who has never applied for letters of administration or who, having applied, has no reasonable grounds for believing that he had been duly appointed, cannot institute an action for wrongful death, or any other cause, upon a false allegation of appointment and thereafter validate that allegation by a subsequent appointment. Graves v. Welborn, 260 N.C. 688 , 133 S.E.2d 761, 1963 N.C. LEXIS 817 (1963); Reid v. Smith, 5 N.C. App. 646, 169 S.E.2d 14, 1969 N.C. App. LEXIS 1416 (1969).

Amendment to Substitute Proper Party Allowed. —

Under G.S. 1A-1 , Rule 15(a) and (c), and G.S. 1A-1 , Rule 17(a), a lack of letters of administration may be cured, and an objection to want of capacity to sue may be avoided by amendment or by substitution of the proper party at any time before hearing. McNamara v. Kerr-McGee Chem. Corp., 328 F. Supp. 1058, 1971 U.S. Dist. LEXIS 12476 (E.D.N.C. 1971).

A cause of action under this section is sufficient for the appointment of an administrator. Vance v. Southern R.R., 138 N.C. 460 , 50 S.E. 860, 1905 N.C. LEXIS 283 (1905).

As to appointment of ancillary administrator, see Merchants Distribs., Inc. v. Hutchinson, 16 N.C. App. 655, 193 S.E.2d 436, 1972 N.C. App. LEXIS 1802 (1972).

Foreign administrator lacks capacity to sue in a wrongful death action in this State. Burcl v. North Carolina Baptist Hosp., 306 N.C. 214 , 293 S.E.2d 85, 1982 N.C. LEXIS 1443 (1982).

Where a deceased has left a will naming an executor, and disposing of all his property, the right of action for his wrongful death must be by the executor named. Hood v. AT & T Co., 162 N.C. 70 , 77 S.E. 1096, 1913 N.C. LEXIS 313 (1913).

Complaint of Unqualified Administratrix Held Demurrable. —

Where an action for wrongful death was instituted in this State by an unqualified administratrix, the defect could be taken advantage of by demurrer, since such plaintiff did not have legal capacity to sue and thus the complaint did not state facts sufficient to constitute a cause of action. Monfils v. Hazlewood, 218 N.C. 215 , 10 S.E.2d 673, 1940 N.C. LEXIS 125 (1940), cert. denied, 312 U.S. 684, 61 S. Ct. 612, 85 L. Ed. 1122, 1941 U.S. LEXIS 988 (1941).

Executor May Not Be Joined as Defendant. —

In a wrongful death action, a motion by the plaintiff, who was the adopted daughter of the decedent, that the executor of the estate of the decedent be joined as a defendant was denied because the executor is not a proper party to be joined as a defendant in an action which he alone by statute is authorized to commence. Young v. Marshburn, 10 N.C. App. 729, 180 S.E.2d 43, 1971 N.C. App. LEXIS 1711 , cert. denied, 278 N.C. 703 , 181 S.E.2d 603, 1971 N.C. LEXIS 1038 (1971).

Action by Representative of Employee Covered by Workers’ Compensation. —

Although an administratrix of a deceased employee who has received compensation for the employee’s death under the provisions of the Workers’ Compensation Act is thereby barred from prosecuting any other remedy for the injury, she may, under this section, pending the hearing before the Industrial Commission, institute an action against a third person whose negligent acts caused the death of the intestate, and where the insurance carrier has paid the compensation later awarded, it is subrogated to the rights of the employer and may maintain the action against such third person in the name of the administratrix. Phifer v. Berry, 202 N.C. 388 , 163 S.E. 119, 1932 N.C. LEXIS 516 (1932).

Since the North Carolina Workers’ Compensation Act expressly provides that the subrogated right of action against the third person tort-feasor in favor of the insurance carrier paying compensation for which the employer is liable must be maintained in the name of the injured employee or his personal representative, the act does not change or modify the requirement of this section that an action for wrongful death must be maintained by the administrator of the deceased, and the insurance carrier cannot maintain the action for wrongful death in its own name against the third person tort-feasor. Whitehead & Anderson, Inc. v. Branch, 220 N.C. 507 , 17 S.E.2d 637, 1941 N.C. LEXIS 575 (1941). See also Brown v. Southern Ry., 202 N.C. 256 , 162 S.E. 613, 1932 N.C. LEXIS 478 (1932).

The administrator of an employee within the Workers’ Compensation Act cannot sue the employer for the wrongful death of the employee since the employee could not have sued the employer for his injury had he lived. Raftery v. Wm. C. Vick Constr. Co., 291 N.C. 180 , 230 S.E.2d 405, 1976 N.C. LEXIS 966 (1976).

Action by Child Born Alive. —

Since the child must carry the burden of infirmity that results from another’s tortious act, it is only natural justice that it, if born alive, be allowed to maintain an action on the ground of actionable negligence. Stetson v. Easterling, 274 N.C. 152 , 161 S.E.2d 531, 1968 N.C. LEXIS 743 (1968).

Prenatal Death of Viable Child. —

This section allows recovery for the death of a viable but unborn child. DiDonato v. Wortman, 320 N.C. 423 , 358 S.E.2d 489, 1987 N.C. LEXIS 2261 (1987) (reversing) DiDonato v. Wortman, 80 N.C. App. 117, 341 S.E.2d 58 (1986).

The Supreme Court’s holding in DiDonato v. Wortman, 320 N.C. 423 , 358 S.E.2d 489 (1987), permitting an action to recover for the destruction of a viable fetus en ventre sa mere, could be applied retroactively to an action commenced before DiDonato was decided. Johnson v. Ruark Obstetrics & Gynecology Assocs., 89 N.C. App. 154, 365 S.E.2d 909, 1988 N.C. App. LEXIS 282 (1988), aff'd, 327 N.C. 283 , 395 S.E.2d 85, 1990 N.C. LEXIS 715 (1990).

The definition of “viability” intended by the Supreme Court in DiDonato v. Wortman, 320 N.C. 423 , 358 S.E.2d 489 (1987), is simply the common law definition of fetal capability to live independently of the mother. Although there is apparently no clear medical consensus as to the specific gestational age at which this capability is currently achieved, a gestational range of 20 to 26 weeks has been suggested. However, the determination of a fetus’s viability is a question of fact. Johnson v. Ruark Obstetrics & Gynecology Assocs., 89 N.C. App. 154, 365 S.E.2d 909, 1988 N.C. App. LEXIS 282 (1988), aff'd, 327 N.C. 283 , 395 S.E.2d 85, 1990 N.C. LEXIS 715 (1990).

Action by Administrator of Unemancipated Child Against Parents. —

An unemancipated child living with his parents may not maintain an action in tort against them, nor can the administrator of the child recover damages against them for the child’s wrongful death, as this section gives a right of action for wrongful death only where the injured party, if he had lived, could have maintained such action. Goldsmith v. Samet, 201 N.C. 574 , 160 S.E. 835, 1931 N.C. LEXIS 41 (1931); Lewis v. Farm Bureau Mut. Auto. Ins. Co., 243 N.C. 55 , 89 S.E.2d 788, 1955 N.C. LEXIS 712 (1955).

The administrator of an unemancipated minor child killed by the negligence of his parent has no cause of action against the parent for the wrongful death of his intestate. Capps v. Smith, 263 N.C. 120 , 139 S.E.2d 19, 1964 N.C. LEXIS 784 (1964); First Union Nat'l Bank v. Hackney, 266 N.C. 17 , 145 S.E.2d 352, 1965 N.C. LEXIS 1386 (1965).

The right of action for wrongful death is limited to such as would, if the injured party had lived, have entitled him to an action for damages therefor. Hence, the administrator of an unemancipated child whose death is caused by the negligence of his parent has no cause of action against the parent for the wrongful death of the child because such child, if he had lived, would have had no cause of action against the parent on account of his injuries. Horney v. Meredith Swimming Pool Co., 267 N.C. 521 , 148 S.E.2d 554, 1966 N.C. LEXIS 1076 (1966).

The administrator of an unemancipated minor child may not bring an action against the administrator of its father for damages for the wrongful death of such child caused by the ordinary negligence of the deceased father. Skinner v. Whitley, 281 N.C. 476 , 189 S.E.2d 230, 1972 N.C. LEXIS 1087 (1972).

Motor Vehicle Cases. —

Except as G.S. 1-539.21 now provides, the administrator of an unemancipated minor child cannot bring an action for wrongful death against the child’s negligent parent. Raftery v. Wm. C. Vick Constr. Co., 291 N.C. 180 , 230 S.E.2d 405, 1976 N.C. LEXIS 966 (1976).

The administrator of a deceased minor’s estate may maintain an action on the dead child’s behalf for wrongful death against the negligent parent-driver of the vehicle through this section and G.S. 1-539.21 which abolished parent-child immunity in motor vehicle cases. Carver v. Carver, 55 N.C. App. 716, 286 S.E.2d 799, 1982 N.C. App. LEXIS 2309 (1982), rev'd, 310 N.C. 669 , 314 S.E.2d 739, 1984 N.C. LEXIS 1697 (1984).

It is not G.S. 1-539.21 standing alone which abrogates parental immunity in wrongful death actions arising out of the operation of motor vehicles; it is G.S. 1-539.21 and this section, read in pari materia, which bring about this result. Carver v. Carver, 310 N.C. 669 , 314 S.E.2d 739, 1984 N.C. LEXIS 1697 (1984).

As G.S. 1-539.21 has abolished the doctrine of parental immunity in personal injury and property damage cases arising out of a parent’s operation of a motor vehicle, the doctrine is no longer a bar to wrongful death actions by the deceased child’s estate which likewise arise out of a parent’s operation of a motor vehicle. Carver v. Carver, 310 N.C. 669 , 314 S.E.2d 739, 1984 N.C. LEXIS 1697 (1984).

When parental immunity would not have barred a personal injury action brought by the deceased child had he lived, it likewise does not bar a wrongful death action brought by his estate. Carver v. Carver, 310 N.C. 669 , 314 S.E.2d 739, 1984 N.C. LEXIS 1697 (1984).

Action by Representative of Parent Against Unemancipated Child. —

Neither a parent nor his personal representative has an action for wrongful death against an unemancipated child or his representative. Horney v. Meredith Swimming Pool Co., 267 N.C. 521 , 148 S.E.2d 554, 1966 N.C. LEXIS 1076 (1966).

Action by Administrator of Wife Against Husband. —

If a husband’s negligence results in the death of his wife, her personal representative may maintain an action against him for her wrongful death. Cox v. Shaw, 263 N.C. 361 , 139 S.E.2d 676, 1965 N.C. LEXIS 1286 (1965).

If a wife’s death is caused by the actionable negligence of her husband, this section creates and authorizes an action by her personal representative to recover for her wrongful death. First Union Nat'l Bank v. Hackney, 266 N.C. 17 , 145 S.E.2d 352, 1965 N.C. LEXIS 1386 (1965).

Since G.S. 52-5 provides that an injured wife has a cause of action against her husband for damages for personal injury, under the provisions of this section the administrator of her estate may maintain an action for wrongful death when she does not survive. Cummings v. Locklear, 12 N.C. App. 572, 183 S.E.2d 832, 1971 N.C. App. LEXIS 1409 , cert. denied, 279 N.C. 726 , 184 S.E.2d 883, 1971 N.C. LEXIS 915 (1971).

Action Against Estate of One Causing Wrongful Death. —

Where a person is alleged to have caused the death of another by his wrongful act, neglect, or default, and suit has been brought against him and is pending at his death within one year after the wrongful death caused by him, an action will lie against the executor and administrator of the deceased defendant under the provisions of this section. Tonkins v. Cooper, 187 N.C. 570 , 122 S.E. 294, 1924 N.C. LEXIS 343 (1924).

When the death of a person is caused by a wrongful act, neglect or default of another, such as would, if the injured party had lived, have entitled him to an action for damages therefor and the person that would have been so liable dies, or is killed at the same time, then the action for damages for wrongful death survives the death of the tort-feasor against his executor or administrator. In re Miles' Estate, 262 N.C. 647 , 138 S.E.2d 487, 1964 N.C. LEXIS 725 (1964).

Right to Have Discharge of Tort-Feasor’s Administratrix Set Aside. —

An administrator who institutes action for the wrongful death of his intestate within the statutory time against the estate of the deceased tort-feasor is entitled to have the order of the clerk discharging the administratrix of the deceased tort-feasor set aside by motion in the cause upon showing a policy of liability insurance in the hands of the administratrix of the deceased tort-feasor available for the payment of the claim. In re Miles' Estate, 262 N.C. 647 , 138 S.E.2d 487, 1964 N.C. LEXIS 725 (1964).

Joinder of Employer with Employee. —

Where the death is caused by the negligence of an employee while acting within the scope of his authority the employer may be joined as a defendant under the doctrine of respondeat superior. Brown v. Southern Ry., 202 N.C. 256 , 162 S.E. 613, 1932 N.C. LEXIS 478 (1932).

Joinder of Joint Tort-Feasor as Party Defendant. —

One of several defendants, in an action for wrongful death arising out of a joint tort, may have still another joint tort-feasor brought in and made a party defendant for the purpose of enforcing contribution, although plaintiff’s right of action against such other tort-feasor, originally subsisting, has been lost by the lapse of time. Godfrey v. Tidewater Power Co., 223 N.C. 647 , 27 S.E.2d 736, 1943 N.C. LEXIS 341 (1943).

Where plaintiff sues defendant under this section, alleging that her intestate was killed by his negligence, defendant may not join as a joint tort-feasor under former G.S. 1-240 a railway company by which the plaintiff’s intestate was employed in interstate commerce. Wilson v. Massagee, 224 N.C. 705 , 32 S.E.2d 335, 1944 N.C. LEXIS 251 (1944).

In a suit under the Federal Employers’ Liability Act against defendant railroad, plaintiff was not permitted to join an additional defendant tort-feasor since there was no common legal right in the actions against the two. Bryant v. Atlantic C.L.R.R., 248 N.C. 43 , 102 S.E.2d 393, 1958 N.C. LEXIS 324 (1958).

Municipalities Not Exempt from Section. —

The plain, positive provisions of this section contain no basis for supposing that the Legislature intended to exempt municipalities therefrom. Jackson v. Housing Auth., 73 N.C. App. 363, 326 S.E.2d 295, 1985 N.C. App. LEXIS 3274 (1985), aff'd, 316 N.C. 259 , 341 S.E.2d 523, 1986 N.C. LEXIS 2126 (1986).

A wrongful death action may be maintained against a municipal corporation. Jackson v. Housing Auth., 316 N.C. 259 , 341 S.E.2d 523, 1986 N.C. LEXIS 2126 (1986).

Actions Against County Employees. —

Plaintiff’s complaint, claiming that social services employees defendants’ negligent failure to investigate claims of child abuse and neglect, coupled with their failure to remove her son from the custody of his abusive father caused her son’s death, contained allegations pertaining only to the defendants’ actions or inactions in their official capacities with county department of social services and that defendants were entitled to judgment based on governmental immunity. Whitaker v. Clark, 109 N.C. App. 379, 427 S.E.2d 142, 1993 N.C. App. LEXIS 274 , cert. denied, 333 N.C. 795 , 431 S.E.2d 31, 1993 N.C. LEXIS 258 (1993).

IV.Distribution of Recovery

The North Carolina law is materially different from that of most states in that distribution is made, not to designated classes, but in accordance with the statute of distribution. McCoy v. Atlantic C.L.R.R., 229 N.C. 57 , 47 S.E.2d 532, 1948 N.C. LEXIS 414 (1948).

Section Governs Nature and Distribution of Recovery. —

The nature and distribution of whatever recovery is obtained is governed by the provisions of this section. Bowen v. Constructors Equip. Rental Co., 283 N.C. 395 , 196 S.E.2d 789, 1973 N.C. LEXIS 990 (1973).

Distribution as if Decedent Died Intestate. —

In the enactment of this section, the legislature intended that the proceeds of a recovery, or settlement, in an action for wrongful death shall be distributed to the same persons, and in the same proportionate shares, as the personal property of the decedent, remaining after the payment of all debts and other claims and expenses of administration, would be distributed if the decedent died intestate. Williford v. Williford, 288 N.C. 506 , 219 S.E.2d 220, 1975 N.C. LEXIS 1017 (1975).

Where decedent’s ex-spouse abandoned her interest in the decedent’s estate at the time of death, decedent’s siblings were entitled to share in any wrongful death proceeds, distribution was dictated by the laws of intestacy, and decedent’s sister, as administratrix had standing to file the action. Locust v. Pitt County Mem'l Hosp., Inc., 358 N.C. 113 , 591 S.E.2d 543, 2004 N.C. LEXIS 20 (2004).

Intestate Succession Act as Modified by Chapter 31A Intended. —

When the legislature, in this section, provided that the proceeds of an action for wrongful death “shall be disposed of as provided in the Intestate Succession Act,” and when it provided in G.S. 97-40 that the order of priority among claimants to death benefits payable under the Workers’ Compensation Act “shall be governed by the general law applicable to the distribution of the personal estate of persons dying intestate,” it had in mind the same law; i.e., the Intestate Succession Act as modified by Chapter 31A, entitled, “Acts Barring Property Rights.” Williford v. Williford, 288 N.C. 506 , 219 S.E.2d 220, 1975 N.C. LEXIS 1017 (1975).

Section 31A-2 must be deemed a part of the Intestate Succession Act and a modification of G.S. 29-15(3), as fully as if it had been written thereinto or specifically designated as an amendment thereto. Williford v. Williford, 288 N.C. 506 , 219 S.E.2d 220, 1975 N.C. LEXIS 1017 (1975).

North Carolina’s wrongful death statute mandates that wrongful death proceeds be distributed as provided in the Intestate Succession Act, G.S. 29-1 et seq., and they are therefore subject to G.S. 31A-2 , under which an abandoning parent is precluded from sharing in such proceeds arising from the death of his or her child. In re Estate of Lunsford, 359 N.C. 382 , 610 S.E.2d 366, 2005 N.C. LEXIS 358 (2005).

Construction with Workers’ Compensation Act. —

Right for decedent’s estate to bring an action against the third-party tortfeasors, was conferred by G.S. 28A-18-2 ; however, the relative rights between decedent’s estate and respondent employer and its insurer were governed by G.S. 97-10.2 . Parker v. C.C. Mangum Co., 188 N.C. App. 518, 655 S.E.2d 869, 2008 N.C. App. LEXIS 218 (2008).

When Distribution in Accordance with Subsection (a) Not Appropriate. —

Distribution of the recovery in accordance with subsection (a), although appropriate when the recovery is computed on the basis of the loss to the estate, is not appropriate when the recovery is based largely on losses suffered by particular beneficiaries. Bowen v. Constructors Equip. Rental Co., 283 N.C. 395 , 196 S.E.2d 789, 1973 N.C. LEXIS 990 (1973).

Action Not Abated upon Death of Primary Beneficiary. —

Although the Wrongful Death Act was amended drastically in some respects in 1969, there was absolutely no change in the basic portions allowing the action and providing for the disposition of the recovery. There is nothing in the amended statute which would, in any way, indicate any intent on the part of the legislature that a wrongful death action should abate upon the death of the primary beneficiary pending determination of the action. Willis v. Duke Power Co., 42 N.C. App. 582, 257 S.E.2d 471, 1979 N.C. App. LEXIS 3198 (1979).

Recovery Held in Trust. —

The administrator holds the amount recovered in trust for those that may be entitled thereto as distributees. Baker v. Raleigh & Gaston R.R., 91 N.C. 308 , 1884 N.C. LEXIS 68 (1884); Avery v. Brantley, 191 N.C. 396 , 131 S.E. 721, 1926 N.C. LEXIS 84 (1926); In re Ives' Estate, 248 N.C. 176 , 102 S.E.2d 807, 1958 N.C. LEXIS 359 (1958).

In receiving funds paid in settlement of a wrongful death claim a personal representative of a decedent’s estate is not acting for the estate but as the trustee for the beneficiaries under the law. In re Below, 12 N.C. App. 657, 184 S.E.2d 378, 1971 N.C. App. LEXIS 1427 (1971).

A personal representative does not derive any right, title, or authority from his intestate, but he sustains more the relation of a trustee in respect to the fund he may recover for the benefit of those entitled eventually to receive it, and he will hold it when recovered actually in that capacity, though in his name as executor or administrator. In re Below, 12 N.C. App. 657, 184 S.E.2d 378, 1971 N.C. App. LEXIS 1427 (1971).

Trier of fact must be apprised of those who are going to share in the recovery in ascertaining the amount of damages recoverable under subdivision (b)(4) of this section, for it is only the losses suffered by these persons as a result of decedent’s death which may be taken into account in assessing these damages. Carver v. Carver, 310 N.C. 669 , 314 S.E.2d 739, 1984 N.C. LEXIS 1697 (1984).

Existence of Beneficiaries Not Condition Precedent. —

The existence of persons who would have been entitled to the recovery under former G.S. 28-149 (now see G.S. 29-1 et seq.) was not a condition precedent to the right to bring the action. The purpose of the section is to give the action irrespective of who may become beneficiaries of the recovery. Warner v. Western N.C.R.R., 94 N.C. 250 , 1886 N.C. LEXIS 47 (1886). See Davenport v. Patrick, 227 N.C. 686 , 44 S.E.2d 203, 1947 N.C. LEXIS 517 (1947); McCoy v. Atlantic C.L.R.R., 229 N.C. 57 , 47 S.E.2d 532, 1948 N.C. LEXIS 414 (1948) (holding that evidence as to the number of children left is inadmissible) .

Recovery, if negligence is proved, is by the decedent’s personal representative and is not conditioned upon the decedent’s leaving dependents or beneficiaries of his estate. Abernethy v. Utica Mut. Ins. Co., 373 F.2d 565, 1967 U.S. App. LEXIS 7522 (4th Cir. 1967).

The right to sue granted by this statute is not conditioned upon who may be the ultimate beneficiary or beneficiaries of a recovery. Cummings v. Locklear, 12 N.C. App. 572, 183 S.E.2d 832, 1971 N.C. App. LEXIS 1409 , cert. denied, 279 N.C. 726 , 184 S.E.2d 883, 1971 N.C. LEXIS 915 (1971).

Complaint Need Not Allege That Intestate Left Heirs. —

The damages when recovered are not to be simply distributed, but disposed of as provided in case of intestacy, and the complaint need not allege that the intestate left heirs. Warner v. Western N.C.R.R., 94 N.C. 250 , 1886 N.C. LEXIS 47 (1886).

Children as Beneficiaries. —

The fortuitous circumstance that those entitled to the recovery under the Intestate Succession Act happened to be the children rather than collateral kin of the decedent is not germane to the administrator’s right of action. Cummings v. Locklear, 12 N.C. App. 572, 183 S.E.2d 832, 1971 N.C. App. LEXIS 1409 , cert. denied, 279 N.C. 726 , 184 S.E.2d 883, 1971 N.C. LEXIS 915 (1971).

Evidence of the decedent’s dependents or beneficiaries is irrelevant and inadmissible. Abernethy v. Utica Mut. Ins. Co., 373 F.2d 565, 1967 U.S. App. LEXIS 7522 (4th Cir. 1967).

Certain liability is imposed for death, and that liability is exclusive. No other responsibility is left which springs from the occurrence upon which liability rests — death — and the effect of the compensation as a satisfaction of all other claims is in no way limited or impaired by the circumstances of the identity of the persons to whom it is paid or because in a given case no one survives to take advantage of the statute. Horney v. Meredith Swimming Pool Co., 267 N.C. 521 , 148 S.E.2d 554, 1966 N.C. LEXIS 1076 (1966).

When Rights of Distributees Fixed. —

Under this section the rights of the distributees are fixed as of the time when the intestate died. Neill v. Wilson, 146 N.C. 242 , 59 S.E. 674, 1907 N.C. LEXIS 32 (1907). See Davenport v. Patrick, 227 N.C. 686 , 44 S.E.2d 203, 1947 N.C. LEXIS 517 (1947).

Two Rights of Action Recognized. —

The right of an injured person to sue for personal injuries of any kind is entirely separate and distinct from the right of the personal representative to sue under authority of the wrongful death statute. Any damage sustained by such person during his lifetime is personal to that person and, if proximately caused by the wrongful act of another, could be recovered by him. If this right of action survived his death, the recovery would be an asset of his estate to be administered as any other personal property owned and possessed by decedent at the time of his death. Hoke v. Atlantic Greyhound Corp., 226 N.C. 332 , 38 S.E.2d 105, 1946 N.C. LEXIS 446 (1946).

While both the right of action for the recovery of consequential damages sustained between date of injury and date of death, and the right of action to recover damages resulting from such death, have as basis the same wrongful act, there is no overlapping of amounts recoverable. But such consequential damages as flow from the wrongful act would be recoverable by the personal representative; those sustained by the injured party during his lifetime, for benefit of his estate, and those resulting from his death, for benefit of his next of kin, determinable upon separate issues. Hoke v. Atlantic Greyhound Corp., 226 N.C. 332 , 38 S.E.2d 105, 1946 N.C. LEXIS 446 (1946).

Distribution of Federal Action Proceeds. —

The proceeds from a federal court action instituted by the decedent’s personal representative were for damages related to his wrongful death, not damages for pain and suffering unrelated to his death, and therefore should have been distributed according to the laws of intestate succession; although the funds were not characterized as wrongful death benefits in the settlement agreement, the federal court record supported such a characterization. In re Estate of Parrish, 143 N.C. App. 244, 547 S.E.2d 74, 2001 N.C. App. LEXIS 272 (2001).

Creditor Has No Claim against Wrongful Death Funds. —

Where the funds obtained by compromise settlement are for damages recoverable for death by wrongful act, the plaintiff creditor has no enforceable claim against these funds or any portion of them. Forsyth County v. Barneycastle, 18 N.C. App. 513, 197 S.E.2d 576, 1973 N.C. App. LEXIS 1925 , cert. denied, 283 N.C. 752 , 198 S.E.2d 722, 1973 N.C. LEXIS 1068 (1973).

Recovery Not Assets of Deceased’s Estate. —

The provision that the recovery is not to be applied as assets in the payment of debts or legacies extends to creditors of the intestate and not to creditors of the distributees. Neill v. Wilson, 146 N.C. 242 , 59 S.E. 674, 1907 N.C. LEXIS 32 (1907).

Damages for a wrongful death are not assets of the estate available to creditors, but are to be disposed of according to the statute of distribution. Hines v. Foundation Co., 196 N.C. 322 , 145 S.E. 612, 1928 N.C. LEXIS 361 (1928).

The right of action for wrongful death, being conferred by statute at death, never belonged to the deceased, and the recovery is not assets in the usual acceptation of the term. Lamm v. Lorbacher, 235 N.C. 728 , 71 S.E.2d 49, 1952 N.C. LEXIS 466 (1952); In re Ives' Estate, 248 N.C. 176 , 102 S.E.2d 807, 1958 N.C. LEXIS 359 (1958).

Proceeds recovered under the wrongful death statute are not a part of a decedent’s estate, and in dealing with these funds neither the clerk nor the estate’s personal representative is administering the estate of a decedent. In re Below, 12 N.C. App. 657, 184 S.E.2d 378, 1971 N.C. App. LEXIS 1427 (1971).

The amount recovered is not a general asset of the estate, but the personal representative shall dispose of it as provided in this section and the Intestate Succession Act. Long v. Coble, 11 N.C. App. 624, 182 S.E.2d 234, 1971 N.C. App. LEXIS 1600 , cert. denied, 279 N.C. 395 , 183 S.E.2d 246, 1971 N.C. LEXIS 822 (1971).

The recovery in an action for wrongful death created by and based on this section is not a general asset of the decedent’s estate. It is not subject to the payment of his debt, nor could the decedent by will or otherwise have diverted any portion of such recovery from the persons who would be entitled thereto under the Intestate Succession Act. Bowen v. Constructors Equip. Rental Co., 283 N.C. 395 , 196 S.E.2d 789, 1973 N.C. LEXIS 990 (1973).

Proceeds recovered in a wrongful death action do not constitute part of the estate of the deceased generally except for certain limited purposes. Carver v. Carver, 310 N.C. 669 , 314 S.E.2d 739, 1984 N.C. LEXIS 1697 (1984).

But Treated as Assets for Medical and Burial Expenses. —

A cause of action for wrongful death, being conferred by statute at death, could never have belonged to the deceased. A recovery resulting from such cause of action is therefore not an asset of the deceased’s estate, although by virtue of the specific provisions of this section it is treated as an asset with respect to burial expenses and certain hospital and medical costs. In re Below, 12 N.C. App. 657, 184 S.E.2d 378, 1971 N.C. App. LEXIS 1427 (1971).

Amounts received in a wrongful death action are assets at least to the extent of funeral and limited medical expenses. Jenkins v. Wheeler, 69 N.C. App. 140, 316 S.E.2d 354, 1984 N.C. App. LEXIS 3397 (1984).

Formerly, Payment of Hospital and Medical Expenses Was Unauthorized. —

See In re Peacock, 261 N.C. 749 , 136 S.E.2d 91, 1964 N.C. LEXIS 575 (1964).

Now Such Payment Is Limited by This Section. —

See In re Peacock, 261 N.C. 749 , 136 S.E.2d 91, 1964 N.C. LEXIS 575 (1964).

Not Subject to Widow’s Year’s Support. —

See Broadnax v. Broadnax, 160 N.C. 432 , 76 S.E. 216, 1912 N.C. LEXIS 185 (1912).

Contributory Negligence of One Beneficiary. —

In an action to recover for wrongful death of a 21/2-year-old child, contributory negligence on the part of its mother is a bar to so much of the recovery as would accrue to her as a beneficiary of the child’s estate, but negligence of the child’s mother will not be imputed to the child’s father, and is no bar to the recovery of the amount which would inure to his benefit as beneficiary of the child’s estate. Pearson v. National Manufacture & Stores Corp., 219 N.C. 717 , 14 S.E.2d 811, 1941 N.C. LEXIS 129 (1941).

Statutory Beneficiary Not Entitled to Share in Recovery for Death Caused by His Negligence. —

In cases instituted to recover damages for wrongful death, no beneficiary under the statute for whom recovery is sought will be permitted to enrich himself by his own wrong. The right of a person otherwise entitled to receive the money paid for wrongful death, or to share in the distribution of such a sum paid, will be denied where the death of the decedent was caused by such person’s negligence. In re Ives' Estate, 248 N.C. 176 , 102 S.E.2d 807, 1958 N.C. LEXIS 359 (1958).

The court will look beyond the parties to the suit and prevent a beneficiary from obtaining any sum by way of recovery in a death by wrongful act where his own wrong had brought about the death. Miller v. Perry, 307 F. Supp. 633, 1969 U.S. Dist. LEXIS 8692 (E.D.N.C. 1969), rev'd, 456 F.2d 63, 1972 U.S. App. LEXIS 11370 (4th Cir. 1972).

Where it is a husband’s wrongful act which caused the death of his wife intestate, he may not share in a recovery. Should the jury return a verdict in favor of the administrator of her estate, the court will enter judgment for only two thirds of the amount of the verdict. Cummings v. Locklear, 12 N.C. App. 572, 183 S.E.2d 832, 1971 N.C. App. LEXIS 1409 , cert. denied, 279 N.C. 726 , 184 S.E.2d 883, 1971 N.C. LEXIS 915 (1971).

In an action by an administrator under the Wrongful Death Act, where a husband caused the death of his wife, the award must be reduced by the statutory share of the wrongdoer. St. Paul Fire & Marine Ins. Co. v. Lack, 476 F.2d 583, 1973 U.S. App. LEXIS 10812 (4th Cir. 1973).

Intestate was killed in a collision while riding as a passenger in an automobile owned and driven by her son. Intestate’s administrator and the son’s insurer effected a settlement whereby the insurer paid the administrator a sum of money in consideration of the release by the administrator of all claims and demands against the son and the insurer arising out of the accident. There was no finding of fact that the son was negligent, or that he knew of the settlement, and the release stated that all parties released denied liability; however, the son, although he alleged in his answer that he was not negligent and that the accident was caused solely by the negligence of the driver of the other automobile did not allege that he had brought suit or made any claim or demand against such driver for damage to his automobile, and offered no evidence at the hearing. It was held that public policy would not permit the son to share in the amount paid in settlement by his insurer. In re Ives' Estate, 248 N.C. 176 , 102 S.E.2d 807, 1958 N.C. LEXIS 359 (1958).

This result is not precluded by the “slayer statute,” G.S. 31A-4 , which excludes the wrongdoer from taking by declaring him to have constructively died prior to the deceased, since the slayer’s exclusion by G.S. 31A-4 appears to apply only to inheritance from the decedent’s “estate,” while wrongful death awards have consistently been deemed not to pass through the personal estate of the deceased, but rather to arise out of a right of action belonging peculiarly to the personal representative for the benefit of the intestate successors. St. Paul Fire & Marine Ins. Co. v. Lack, 476 F.2d 583, 1973 U.S. App. LEXIS 10812 (4th Cir. 1973).

Recovery Reduced by Liable Beneficiary’s Share. —

In wrongful death actions where recovery depends on establishing the liability of a party who is also a beneficiary of the decedent’s estate, any recovery obtained shall be reduced by that party-beneficiary’s pro rata share, and that party-beneficiary is precluded from participating in the recovery; but the action may be maintained on behalf of the other beneficiaries, if any. Carver v. Carver, 310 N.C. 669 , 314 S.E.2d 739, 1984 N.C. LEXIS 1697 (1984).

Effect of Liability of Sole Beneficiary. —

If recovery in a wrongful death action depends upon establishing the liability of a party who is the sole beneficiary of the decedent’s estate, the action may not be maintained at all. Carver v. Carver, 310 N.C. 669 , 314 S.E.2d 739, 1984 N.C. LEXIS 1697 (1984).

Nonnegligent Parent Allowed to Recover for Child’s Death. —

A wrongful death action could be maintained on behalf of deceased child’s estate against defendant mother, but only father would be entitled to share in any recovery, since any recovery obtained would be grounded on the negligence of the mother. Carver v. Carver, 310 N.C. 669 , 314 S.E.2d 739, 1984 N.C. LEXIS 1697 (1984).

Family Purpose Doctrine Did Not Bar Husband’s Recovery Where Wife Negligent. —

Husband was not barred by the family purpose doctrine from sharing in any recovery by his son’s estate because of the negligence of his wife, the defendant in driving the husband’s automobile. Carver v. Carver, 310 N.C. 669 , 314 S.E.2d 739, 1984 N.C. LEXIS 1697 (1984).

Plaintiff father, having abandoned the deceased when the latter was a minor child, could not share in the proceeds of the settlement of the claim for wrongful death now in the hands of the administratrix. Williford v. Williford, 288 N.C. 506 , 219 S.E.2d 220, 1975 N.C. LEXIS 1017 (1975).

Distribution When Deceased Was Nonresident. —

Where a person was domiciled in another state and was killed in this State, and an administrator sues in this State, the funds recovered must be distributed under the laws of this State, though a prior administration had been taken out in the state of his domicile. Hartness v. Pharr, 133 N.C. 566 , 45 S.E. 901, 1903 N.C. LEXIS 95 (1903). See Hall v. Southern R.R., 146 N.C. 345 , 59 S.E. 879, 1907 N.C. LEXIS 54 (1907).

Allocation of Funds Received in Single Settlement for Wrongful Death and for Suffering Prior to Death. —

See In re Peacock, 261 N.C. 749 , 136 S.E.2d 91, 1964 N.C. LEXIS 575 (1964).

Recovery under Federal Employers’ Liability Act. —

In an action to recover damages under the Federal Employers’ Liability Act, this State statute does not apply as to the distribution of the recovery. Horton v. Seaboard Air Line R.R., 175 N.C. 472 , 95 S.E. 883, 1918 N.C. LEXIS 97 (1918), cert. dismissed, 251 U.S. 566, 40 S. Ct. 180, 64 L. Ed. 417, 1920 U.S. LEXIS 1697 (1920).

Attorneys’ Fees. —

The 1985 amendment to this section provides that an attorney who litigates a wrongful death claim may be paid for his services from the wrongful death proceeds. In re Lessard, 78 N.C. App. 196, 336 S.E.2d 712, 1985 N.C. App. LEXIS 4274 (1985).

Attorney who neither initiated nor handled wrongful death claim and was appointed successor administrator only after wrongful death award had been made, but who expended considerable time in determining the correct distribution of wrongful death proceeds, could be compensated for his services from the wrongful death proceeds. In re Lessard, 78 N.C. App. 196, 336 S.E.2d 712, 1985 N.C. App. LEXIS 4274 (1985).

“Costs” of an estate would not be payable from wrongful death proceeds. In re Lessard, 78 N.C. App. 196, 336 S.E.2d 712, 1985 N.C. App. LEXIS 4274 (1985).

V.Damages Recoverable

A.In General

Purpose of damages in a wrongful death case is to restore the beneficiaries to the position they would have occupied had there been no death. Scallon v. Hooper, 58 N.C. App. 551, 293 S.E.2d 843, 1982 N.C. App. LEXIS 2806 (1982).

Legislature Intended to Be as Full Compensation as Possible. —

The General Assembly intended the wrongful death statute to as fully as possible compensate persons for the loss of their decedent. Beck v. Carolina Power & Light Co., 57 N.C. App. 373, 291 S.E.2d 897, 1982 N.C. App. LEXIS 2684 , aff'd, 307 N.C. 267 , 297 S.E.2d 397, 1982 N.C. LEXIS 1678 (1982).

Basis for Damages Generally. —

In this State the recovery in a wrongful death case is based largely on losses suffered by particular beneficiaries. Scallon v. Hooper, 58 N.C. App. 551, 293 S.E.2d 843, 1982 N.C. App. LEXIS 2806 (1982).

This section allows the personal representative, on behalf of the statutory beneficiaries of the estate, to recover, inter alia, the present monetary value of the decedent to the beneficiaries. The measure is the worth of the decedent; how well off the beneficiaries are absent the decedent is immaterial. Harris v. United States, 121 F.R.D. 652, 1988 U.S. Dist. LEXIS 9420 (W.D.N.C. 1988).

This section controls the measure of damages. Nelson v. United States, 541 F. Supp. 816, 1982 U.S. Dist. LEXIS 13182 (M.D.N.C. 1982).

The action for wrongful death exists only by virtue of this section, and the statutory provision must govern not only the right of action but also the rule for determining the basis and extent of recovery of damages therefor. Lamm v. Lorbacher, 235 N.C. 728 , 71 S.E.2d 49, 1952 N.C. LEXIS 466 (1952).

In North Carolina a right of action to recover damages for wrongful death is given by this section and in this jurisdiction the action for wrongful death exists only by virtue of these statutes. In re Miles' Estate, 262 N.C. 647 , 138 S.E.2d 487, 1964 N.C. LEXIS 725 (1964).

Wrongful death damages are unlimited. Brendle v. General Tire & Rubber Co., 408 F.2d 116, 1969 U.S. App. LEXIS 13323 (4th Cir. 1969).

Determination of Damages Recoverable under Subsection (b). —

Damages recoverable under subsection (b) are not determined by ascertaining the net pecuniary loss suffered by the estate, but are determined by ascertaining the present monetary loss suffered by those persons entitled to receive the damages. Bowen v. Constructors Equip. Rental Co., 16 N.C. App. 70, 191 S.E.2d 419, 1972 N.C. App. LEXIS 1644 (1972), aff'd, 283 N.C. 395 , 196 S.E.2d 789, 1973 N.C. LEXIS 990 (1973).

Where the measure of damages in death cases is “loss to beneficiaries,” rather than the “loss to estate,” a beneficiary’s right to recover the value of expected benefits is limited to his life expectancy. Bowen v. Constructors Equip. Rental Co., 16 N.C. App. 70, 191 S.E.2d 419, 1972 N.C. App. LEXIS 1644 (1972), aff'd, 283 N.C. 395 , 196 S.E.2d 789, 1973 N.C. LEXIS 990 (1973).

Question as to Economic Loss to Estate Not Error. —

Where plaintiff ’s lawyer asked doctor “Do you have an opinion as to the present value of the economic loss to the estate?”, defendant was correct in pointing out that recovery of damages under the statute is to the beneficiaries of the decedent and not to the decedent’s estate; however, it was plain from the record that both doctor and the jury understood the correct measurement of damages under the wrongful death statute. Stutts v. Adair, 94 N.C. App. 227, 380 S.E.2d 411, 1989 N.C. App. LEXIS 482 (1989).

As to measure of damages under former statute, see Kesler v. Smith, 66 N.C. 154 , 1872 N.C. LEXIS 22 (1872); Burton v. Wilmington & W.R.R., 82 N.C. 504 , 1880 N.C. LEXIS 285 (1880), modified, Burton v. Wilmington & W. R. Co., 84 N.C. 192 , 1881 N.C. LEXIS 52 (1881); Bradley v. Ohio River & C.R.R., 122 N.C. 972 , 30 S.E. 8, 1898 N.C. LEXIS 379 (1898); Russell v. Windsor Steamboat Co., 126 N.C. 961 , 36 S.E. 191, 1900 N.C. LEXIS 343 (1900); Carter v. North Carolina R.R., 139 N.C. 499 , 52 S.E. 642, 1905 N.C. LEXIS 157 (1905); Poe v. Raleigh & A. Air Line R.R., 141 N.C. 525 , 54 S.E. 406, 1906 N.C. LEXIS 136 (1906); Purnell v. Rockingham R.R., 190 N.C. 573 , 130 S.E. 313, 1925 N.C. LEXIS 125 (1925); Carpenter v. Asheville Power & Light Co., 191 N.C. 130 , 131 S.E. 400, 1926 N.C. LEXIS 22 (1926); Hicks v. Love, 201 N.C. 773 , 161 S.E. 394, 1931 N.C. LEXIS 91 (1931); Queen City Coach Co. v. Lee, 218 N.C. 320 , 11 S.E.2d 341, 1940 N.C. LEXIS 150 (1940); Rea v. Simowitz, 226 N.C. 379 , 38 S.E.2d 194, 1946 N.C. LEXIS 458 (1946); McCoy v. Atlantic C.L.R.R., 229 N.C. 57 , 47 S.E.2d 532, 1948 N.C. LEXIS 414 (1948); Hanks v. Norfolk & W.R.R., 230 N.C. 179 , 52 S.E.2d 717, 1949 N.C. LEXIS 601 (1949); Martin v. Currie, 230 N.C. 511 , 53 S.E.2d 447, 1949 N.C. LEXIS 357 (1949); United States v. Brooks, 176 F.2d 482, 1949 U.S. App. LEXIS 3075 (4th Cir. 1949), limited, Price v. United States, 179 F. Supp. 309, 1959 U.S. Dist. LEXIS 2375 (D. Va. 1959); Journigan v. Little River Ice Co., 233 N.C. 180 , 63 S.E.2d 183, 1951 N.C. LEXIS 560 (1951); Lamm v. Lorbacher, 235 N.C. 728 , 71 S.E.2d 49, 1952 N.C. LEXIS 466 (1952); Caudle v. Southern Ry., 242 N.C. 466 , 88 S.E.2d 138, 1955 N.C. LEXIS 602 (1955); Bryant v. Woodlief, 252 N.C. 488 , 114 S.E.2d 241, 1960 N.C. LEXIS 610 (1960); Scriven v. McDonald, 264 N.C. 727 , 142 S.E.2d 585, 1965 N.C. LEXIS 1268 (1965); Smith v. Mercer, 276 N.C. 329 , 172 S.E.2d 489, 1970 N.C. LEXIS 687 (1970); Bowen v. Constructors Equip. Rental Co., 283 N.C. 395 , 196 S.E.2d 789, 1973 N.C. LEXIS 990 (1973); Mosley v. United States, 538 F.2d 555, 1976 U.S. App. LEXIS 12577 (4th Cir. 1976).

Recovery to Be One Compensation in Lump Sum. —

This section contemplates that if plaintiff be entitled to recover at all, he is entitled to recover as damages one compensation in a lump sum. He is not entitled to recover the whole sum from each of the joint tort-feasors. Kendrick v. Cain, 272 N.C. 719 , 159 S.E.2d 33, 1968 N.C. LEXIS 722 (1968).

Damages may not be assessed on the basis of sheer speculation, devoid of factual substantiation. Gay v. Thompson, 266 N.C. 394 , 146 S.E.2d 425, 1966 N.C. LEXIS 1359 (1966); Stetson v. Easterling, 274 N.C. 152 , 161 S.E.2d 531, 1968 N.C. LEXIS 743 (1968).

Some Speculation Is Necessary to Determine Damages. —

In allowing recovery under this section, this State’s courts have recognized that, by necessity, some speculation is necessary in determining damages. Beck v. Carolina Power & Light Co., 57 N.C. App. 373, 291 S.E.2d 897, 1982 N.C. App. LEXIS 2684 , aff'd, 307 N.C. 267 , 297 S.E.2d 397, 1982 N.C. LEXIS 1678 (1982).

Jury May Base Speculation on Facts. —

Damages in any wrongful death action are to some extent uncertain and speculative. A jury may indulge in speculation in assessing damages where it is necessary and there are sufficient facts to support speculation. Gay v. Thompson, 266 N.C. 394 , 146 S.E.2d 425, 1966 N.C. LEXIS 1359 (1966); Beck v. Carolina Power & Light Co., 57 N.C. App. 373, 291 S.E.2d 897, 1982 N.C. App. LEXIS 2684 , aff'd, 307 N.C. 267 , 297 S.E.2d 397, 1982 N.C. LEXIS 1678 (1982).

Some Speculation Not Grounds for Refusing All Damages. —

The fact that the full extent of the damages must be a matter of some speculation is not ground for refusing all damages. Brown v. Moore, 286 N.C. 664 , 213 S.E.2d 342, 1975 N.C. LEXIS 1270 (1975); Beck v. Carolina Power & Light Co., 57 N.C. App. 373, 291 S.E.2d 897, 1982 N.C. App. LEXIS 2684 , aff'd, 307 N.C. 267 , 297 S.E.2d 397, 1982 N.C. LEXIS 1678 (1982).

Absence of Yardstick for Ascertaining Monetary Recovery. —

Monetary recovery cannot be denied simply because no yardstick for ascertaining the amount thereof has been provided. Beck v. Carolina Power & Light Co., 57 N.C. App. 373, 291 S.E.2d 897, 1982 N.C. App. LEXIS 2684 , aff'd, 307 N.C. 267 , 297 S.E.2d 397, 1982 N.C. LEXIS 1678 (1982).

Negative Factors Held Relevant to Present Monetary Value. —

Evidence regarding 19 year old decedent’s low level of educational attainment, absence of regular employment, status of dependency on her parents, and history of alcohol and drug abuse was clearly relevant to a determination of her “present monetary value . . . to the persons entitled to receive the damages recovered,” and the jury could conclude that these negative factors offset, to the extent found, what decedent’s present monetary value would have been in their absence. Pearce v. Fletcher, 74 N.C. App. 543, 328 S.E.2d 889, 1985 N.C. App. LEXIS 3530 (1985) (upholding award of damages in the amount of $5,000) .

Under subsection (b)(4), only reasonably expected net income of decedent can be recovered. Victim’s parents, his only survivors, could only recover the amount of his income that they reasonably might have received had he lived. State v. Smith, 90 N.C. App. 161, 368 S.E.2d 33, 1988 N.C. App. LEXIS 408 (1988), aff'd, 323 N.C. 703 , 374 S.E.2d 866, 1989 N.C. LEXIS 1 (1989).

Trial Court Erred in Application of This Section. —

Although the trial court properly used the wrongful death statute to compute the amount of restitution which defendant found guilty of misdemeanor death by vehicle should pay, it erred in its application of this section. State v. Smith, 90 N.C. App. 161, 368 S.E.2d 33, 1988 N.C. App. LEXIS 408 (1988), aff'd, 323 N.C. 703 , 374 S.E.2d 866, 1989 N.C. LEXIS 1 (1989).

Certain increased medical expenses as well as funeral bills incident to the death of a 40 week-old fetus could only be recovered by the administrator of the fetal estate pursuant to an action under this section. Johnson v. Ruark Obstetrics & Gynecology Assocs., 89 N.C. App. 154, 365 S.E.2d 909, 1988 N.C. App. LEXIS 282 (1988), aff'd, 327 N.C. 283 , 395 S.E.2d 85, 1990 N.C. LEXIS 715 (1990).

Injured Person’s Right of Action to Recover Damages Survives. —

An injured person’s common-law right of action in respect of damages he sustained during the interval between injury and death now survives to his personal representative. Bowen v. Constructors Equip. Rental Co., 283 N.C. 395 , 196 S.E.2d 789, 1973 N.C. LEXIS 990 (1973).

Damages Sustained by Deceased in His Lifetime Recoverable under Former Statute. —

See Hoke v. Atlantic Greyhound Corp., 226 N.C. 332 , 38 S.E.2d 105, 1946 N.C. LEXIS 446 (1946).

Liability of Damages for Payment of Decedent’s Debts. —

It seems improbable that the General Assembly intended that recovery for items of damage within subsection (b)(1), (2) and (5) should be exempt from liability for the payment of the debts and legacies of the decedent. Bowen v. Constructors Equip. Rental Co., 283 N.C. 395 , 196 S.E.2d 789, 1973 N.C. LEXIS 990 (1973).

The value of the life before 21 as well as after 21 years of age was recoverable. Gurley v. Southern Power Co., 172 N.C. 690 , 90 S.E. 943, 1916 N.C. LEXIS 381 (1916).

Wrongful Death of Child. —

The meaning of damages, in the case of the wrongful death of a child is the same as in the case of an adult. The difficulty is in the application. Russell v. Windsor Steamboat Co., 126 N.C. 961 , 36 S.E. 191, 1900 N.C. LEXIS 343 (1900). See Gurley v. Southern Power Co., 172 N.C. 690 , 90 S.E. 943, 1916 N.C. LEXIS 381 (1916); Scriven v. McDonald, 264 N.C. 727 , 142 S.E.2d 585, 1965 N.C. LEXIS 1268 (1965).

The measure of damages for the death of a child is the same as for an adult, notwithstanding the difficulty of applying the rule is greatly increased in the case of an infant. Burton v. Croghan, 265 N.C. 392 , 144 S.E.2d 147, 1965 N.C. LEXIS 996 (1965).

Hedonic damages are not recoverable under subdivision (b) of this section. Livingston v. United States, 817 F. Supp. 601, 1993 U.S. Dist. LEXIS 4336 (E.D.N.C. 1993).

Burden of Proof under Former Statute. —

See Scriven v. McDonald, 264 N.C. 727 , 142 S.E.2d 585, 1965 N.C. LEXIS 1268 (1965); Greene v. Nichols, 274 N.C. 18 , 161 S.E.2d 521, 1968 N.C. LEXIS 731 (1968); Maynor v. Townsend, 2 N.C. App. 19, 162 S.E.2d 677, 1968 N.C. App. LEXIS 867 (1968); Brown v. Moore, 286 N.C. 664 , 213 S.E.2d 342, 1975 N.C. LEXIS 1270 (1975).

Instructions as to Life Expectancy of Persons Entitled to Recovery. —

Where there is evidence tending to show that persons entitled to receive the damages recovered have a shorter life expectancy than that of deceased, it is error for the court to fail to instruct the jury to consider the life expectancy of such persons in determining the amount of damages recoverable. Bowen v. Constructors Equip. Rental Co., 16 N.C. App. 70, 191 S.E.2d 419, 1972 N.C. App. LEXIS 1644 (1972), aff'd, 283 N.C. 395 , 196 S.E.2d 789, 1973 N.C. LEXIS 990 (1973).

Argument that defendant would be obligated to pay every single dollar of the damage award might be interpreted by the jury as meaning that defendant was not protected by automobile liability insurance, and such argument was unfair to the plaintiff and improper. Scallon v. Hooper, 58 N.C. App. 551, 293 S.E.2d 843, 1982 N.C. App. LEXIS 2806 (1982).

Instruction That Damages Are Tax Exempt Is Erroneous. —

It is reversible error for the trial court to instruct the jury that damages awarded in a wrongful death action are exempt from federal and state income taxes. Scallon v. Hooper, 58 N.C. App. 551, 293 S.E.2d 843, 1982 N.C. App. LEXIS 2806 (1982).

Income Tax Exemption Instruction Inequitable. —

It would be inequitable to give an income tax exemption instruction to the jury without allowing evidence relative to the effect that the exemption would have on the future tax liability of each of the particular beneficiaries, which would unduly complicate a wrongful death action, which is already complicated by statute. Scallon v. Hooper, 58 N.C. App. 551, 293 S.E.2d 843, 1982 N.C. App. LEXIS 2806 (1982).

Question of Damages Is for Jury. —

See Carter v. North Carolina R.R., 139 N.C. 499 , 52 S.E. 642, 1905 N.C. LEXIS 157 (1905); Horton v. Seaboard Air Line R.R., 175 N.C. 472 , 95 S.E. 883, 1918 N.C. LEXIS 97 (1918), cert. dismissed, 251 U.S. 566, 40 S. Ct. 180, 64 L. Ed. 417, 1920 U.S. LEXIS 1697 (1920); Carpenter v. Asheville Power & Light Co., 191 N.C. 130 , 131 S.E. 400, 1926 N.C. LEXIS 22 (1926).

The assessment of damages must, to a large extent, be left to the good sense and fair judgment of the jury. Beck v. Carolina Power & Light Co., 57 N.C. App. 373, 291 S.E.2d 897, 1982 N.C. App. LEXIS 2684 , aff'd, 307 N.C. 267 , 297 S.E.2d 397, 1982 N.C. LEXIS 1678 (1982).

The assessment of damages must, to a large extent, be left to the good sense and fair judgment of the jury — subject, of course, to the discretionary power of the judge to set its verdict aside when, in his opinion, equity and justice so require. Brown v. Moore, 286 N.C. 664 , 213 S.E.2d 342, 1975 N.C. LEXIS 1270 (1975).

The jurors being “the sole judges of the facts” are necessarily the sole judges of whether they are “satisfied from the evidence and by its greater weight” that plaintiff sustained damages and, if so, whether there is evidence from which they can reasonably determine the approximate amount of the plaintiff’s pecuniary loss. Brown v. Moore, 286 N.C. 664 , 213 S.E.2d 342, 1975 N.C. LEXIS 1270 (1975).

Trial Court Should Submit to Jury Separate Issues for Compensatory and Punitive Damages. —

In wrongful death action, trial court should submit to jury separate issues for compensatory and punitive damages when evidence supports submission of these issues. Jones v. McCaskill, 99 N.C. App. 764, 394 S.E.2d 254, 1990 N.C. App. LEXIS 825 (1990).

Double Recovery Not Permitted. —

Because recovery for any diminishment in the quality of life of the survivors in a wrongful death case is already addressed in effect under subdivisions (b)(4)b and (b)(4)c, allowance of separate hedonic damages would result in double recovery. Livingston v. United States, 817 F. Supp. 601, 1993 U.S. Dist. LEXIS 4336 (E.D.N.C. 1993).

Relevant Evidence. —

Evidence pertaining to disease of plaintiff’s decedent and the effect it had on his relationship with his parents had a tendency to prove the extent of damages, which were in controversy in wrongful death action. The evidence was therefore relevant and should have been admitted on that ground. Hales v. Thompson, 111 N.C. App. 350, 432 S.E.2d 388, 1993 N.C. App. LEXIS 798 (1993).

Medical records and North Carolina Department of Social Services records of the decedent and the decedent’s child were admissible in a wrongful death and medical malpractice action because the personal representative failed to carry the burden to show that the records were unfairly prejudicial, or that the trial court abused its discretion in admitting the prior records into evidence. The prior records illustrated a complete picture of the decedent’s mental health and were relevant concerning causation and damages. Clarke v. Mikhail, 243 N.C. App. 677, 779 S.E.2d 150, 2015 N.C. App. LEXIS 905 (2015).

B.Pain and Suffering

There is a surviving cause of action for predeath expenses and pain and suffering. Brendle v. General Tire & Rubber Co., 408 F.2d 116, 1969 U.S. App. LEXIS 13323 (4th Cir. 1969).

Decedent Must Have Been Conscious. —

In an action under the federal Tort Claims Act arising out of a vehicular accident, the extent of the accident inflicted massive head injuries making it improbable that the decedent was conscious following the collision, and therefore ruling out recovery for post-accident pain and suffering. Livingston v. United States, 817 F. Supp. 601, 1993 U.S. Dist. LEXIS 4336 (E.D.N.C. 1993).

Recovery for Pain and Suffering and for Medical Expenses. —

Recovery for pain and suffering and for hospital and medical expenses relate to a single cause of action and should be submitted upon a single issue of damages. Hoke v. Atlantic Greyhound Corp., 226 N.C. 332 , 38 S.E.2d 105, 1946 N.C. LEXIS 446 (1946); In re Peacock, 261 N.C. 749 , 136 S.E.2d 91, 1964 N.C. LEXIS 575 (1964).

Damages for the pain and suffering of a decedent fetus are recoverable if they can be reasonably established. DiDonato v. Wortman, 320 N.C. 423 , 358 S.E.2d 489, 1987 N.C. LEXIS 2261 (1987).

Suffering Was Not Speculative. —

In a wrongful death action arising out of asbestos-exposure, a district court did not abuse its discretion in refusing to reduce the amount of the damages awarded where, given the uncontested evidence regarding the course of the decedent’s illness and attendant complications, it could not be said that his physical and psychological suffering from his disease was speculative. Finch v. Covil Corp., 972 F.3d 507, 2020 U.S. App. LEXIS 26829 (4th Cir. 2020).

C.Burial Expenses

Recovery of Burial Expenses. —

A cause of action does not exist for the recovery of burial expenses in an action for wrongful death separate and apart from the right to recover for the wrongful death. The statute provides for the payment of burial expenses out of “the amount recovered in such action.” Davenport v. Patrick, 227 N.C. 686 , 44 S.E.2d 203, 1947 N.C. LEXIS 517 (1947); Crawford v. Hudson, 3 N.C. App. 555, 165 S.E.2d 557, 1969 N.C. App. LEXIS 1619 (1969).

Prenatal Death of Viable Child. —

Medical and funeral expenses, as well as punitive and nominal damages, should be allowed in the case of a decedent fetus where appropriate. DiDonato v. Wortman, 320 N.C. 423 , 358 S.E.2d 489, 1987 N.C. LEXIS 2261 (1987).

D.Loss of Decedent’s Income, Services, Society, etc

The paragraphs of subdivision (b)(4) enumerate some of the factors to be considered in determining the present monetary value of the decedent to the persons entitled to the damages recovered. Brown v. Moore, 286 N.C. 664 , 213 S.E.2d 342, 1975 N.C. LEXIS 1270 (1975).

Damages determinable in accordance with subdivision (b)(4) are quite different from damages determinable on the basis of the pecuniary injury suffered by the decedent’s estate as the result of his death. Smith v. Mercer, 276 N.C. 329 , 172 S.E.2d 489, 1970 N.C. LEXIS 687 (1970); Bowen v. Constructors Equip. Rental Co., 16 N.C. App. 70, 191 S.E.2d 419, 1972 N.C. App. LEXIS 1644 (1972), aff'd, 283 N.C. 395 , 196 S.E.2d 789, 1973 N.C. LEXIS 990 (1973).

No rule is prescribed for the measurement or ascertainment of the damages recoverable under subdivision (b)(4). It would be difficult, if not impossible, to formulate a rule of general application for the measurement of such damages. Bowen v. Constructors Equip. Rental Co., 283 N.C. 395 , 196 S.E.2d 789, 1973 N.C. LEXIS 990 (1973).

The present monetary value of the decedent to the persons entitled to receive the damages recovered will usually defy any precise mathematical computation. Brown v. Moore, 286 N.C. 664 , 213 S.E.2d 342, 1975 N.C. LEXIS 1270 (1975); Beck v. Carolina Power & Light Co., 57 N.C. App. 373, 291 S.E.2d 897, 1982 N.C. App. LEXIS 2684 , aff'd, 307 N.C. 267 , 297 S.E.2d 397, 1982 N.C. LEXIS 1678 (1982).

Damages for any items under subdivision (b)(4), unless the decedent was a person of established earning capacity beyond his or her personal needs, involve in large measure speculative and intangible considerations. Brown v. Moore, 286 N.C. 664 , 213 S.E.2d 342, 1975 N.C. LEXIS 1270 (1975).

Since the persons entitled to the damages recovered may have suffered substantial losses on account of the items of damage under subdivision (b)(4), it cannot be said that there can be no recovery for these items of damages because no yardstick for ascertaining the amount thereof has been provided. Bowen v. Constructors Equip. Rental Co., 283 N.C. 395 , 196 S.E.2d 789, 1973 N.C. LEXIS 990 (1973).

Direct evidence of earnings is not essential, it being sufficient to present evidence of “health, age, industry, means and business.” Maynor v. Townsend, 2 N.C. App. 19, 162 S.E.2d 677, 1968 N.C. App. LEXIS 867 (1968).

It is not essential that direct evidence of the earnings of a deceased adult be offered in order for there to be recovery of damages. Evidence of his health, age, industry, means and business are competent to show loss. Reeves v. Hill, 272 N.C. 352 , 158 S.E.2d 529, 1968 N.C. LEXIS 661 (1968).

Although it is not essential that direct, specific evidence be offered with reference to decedent’s earning capacity, it is required that plaintiff offer some evidence tending to show that intestate was potentially capable of earning money in excess of that which would be required for her support. Greene v. Nichols, 274 N.C. 18 , 161 S.E.2d 521, 1968 N.C. LEXIS 731 (1968).

Direct Evidence of Intent to Give Is Essential. —

The trial judge erred in submitting to the jury as an element of damages the amount of income plaintiffs could reasonably have expected from the deceased where the plaintiffs presented no direct evidence that their deceased daughters “had ever expressed an intent to provide any of [their] income to [their] parents”; although the evidence indicated that deceased daughters were brought up in a family and culture within which intra-family financial assistance was favored, absolutely no evidence tended to show that the two teenage girls, specifically, would grow up to follow this example. Bahl v. Talford, 138 N.C. App. 119, 530 S.E.2d 347, 2000 N.C. App. LEXIS 537 (2000).

Exclusion of Plaintiff’s Remarriage Proper. —

In a medical malpractice action, the exclusion of evidence of plaintiff’s remarriage was proper under G.S. 28A-18-2(c), as defendants should not have been permitted to reduce their liability for the damages caused by the patient’s death simply because plaintiff had remarried. Katy v. Capriola, 226 N.C. App. 470, 742 S.E.2d 247, 2013 N.C. App. LEXIS 396 (2013).

Prenatal Death of Viable Child. —

Lost income damages normally available under subdivision (b)(4)a cannot be recovered in an action for the wrongful death of a stillborn child. DiDonato v. Wortman, 320 N.C. 423 , 358 S.E.2d 489, 1987 N.C. LEXIS 2261 (1987).

Damages normally recovered under subdivision (b)(4)b and c, for loss of services, companionship, advice and the like, will not be available in an action for the wrongful death of a viable fetus. DiDonato v. Wortman, 320 N.C. 423 , 358 S.E.2d 489, 1987 N.C. LEXIS 2261 (1987).

Loss of bloodline and denial of grandchildren are not grounds for recovery under this section. Livingston v. United States, 817 F. Supp. 601, 1993 U.S. Dist. LEXIS 4336 (E.D.N.C. 1993).

Evidence of Earnings in Excess of Amount Needed to Support Decedent Required. —

It is required that plaintiff offer some evidence tending to show that intestate was potentially capable of earning money in excess of that which would be required for her support. Maynor v. Townsend, 2 N.C. App. 19, 162 S.E.2d 677, 1968 N.C. App. LEXIS 867 (1968).

Showing of Actual Support of Parents Not Required. —

Trial judge did not err by instructing the jury that it could award damages to decedent’s parents for the loss of her net income; there is no reason to demand actual support of the parents as the sole ground for any recovery of lost income since such a requirement would run counter to the remedial purpose of the statute and to the evidentiary provisions of subsection (c). Stutts v. Adair, 94 N.C. App. 227, 380 S.E.2d 411, 1989 N.C. App. LEXIS 482 (1989).

Estimating Life Expectancy of Child. —

In an action for the wrongful death of a child nine years of age the rule for measuring damages is that expectancy of life may be determined by the jury based upon the constitution, health and habits of the infant, and where the jury was so instructed, it was not error for the court in illustrating the rule to use the figures 50 and 20 in referring to life expectancy. Rea v. Simowitz, 226 N.C. 379 , 38 S.E.2d 194, 1946 N.C. LEXIS 458 (1946).

Expert Testimony as to Monetary Value of Decedent. —

An expert economist’s testimony in a wrongful death action as to the present monetary value of the decedent to the persons entitled to receive damages under subsection (b) was properly admitted in evidence without the witness first having placed into evidence the statistics, formulae, calculations and economic assumptions used in arriving at his opinion. While the failure to elaborate on the witness’ computations might have weakened the probative value of the testimony, it did not affect its admissibility. Rutherford v. Bass Air Conditioning Co., 38 N.C. App. 630, 248 S.E.2d 887, 1978 N.C. App. LEXIS 2300 (1978), cert. denied, 296 N.C. 586 , 254 S.E.2d 34, 1979 N.C. LEXIS 1220 (1979).

The testimony of an expert who predicted economic loss based on available knowledge pertaining to decedent, including testimony of his work supervisors and testimony regarding the decedent’s skills and wage data, as well as expert’s own expertise and ability to project a person’s likely economic status through the use of data available in his field provided a reasonable basis for the computation of damages, even though the result was, at best, only approximate. Beck v. Carolina Power & Light Co., 57 N.C. App. 373, 291 S.E.2d 897, 1982 N.C. App. LEXIS 2684 , aff'd, 307 N.C. 267 , 297 S.E.2d 397, 1982 N.C. LEXIS 1678 (1982).

Expert testimony is practically the only evidence available to prove future earnings in a wrongful death action. Thorpe v. Wilson, 58 N.C. App. 292, 293 S.E.2d 675, 1982 N.C. App. LEXIS 2781 (1982).

When Judge Must Set Verdict Aside. —

In awarding damages for wrongful death the jury is not ordinarily required as a matter of law to award damages for all or any of the items specified in paragraphs a, b, and c of subdivision (b)(4). It is only when the jury has arbitrarily disregarded the law and the evidence that the judge must exercise his judicial discretion and set the verdict aside. Brown v. Moore, 286 N.C. 664 , 213 S.E.2d 342, 1975 N.C. LEXIS 1270 (1975).

Reasonable Level of Certainty Requirement. —

In a failure to warn product liability action against a taser manufacturer by the administrator of a decedent’s estate, the manufacturer was entitled to a new trial on damages because the evidence did not meet the required reasonable level of certainty to establish that services, care, and companionship had a monetary value approaching $6.15 million. Fontenot v. Taser Int'l, Inc., 736 F.3d 318, 2013 U.S. App. LEXIS 23510 (4th Cir. 2013).

Damages for Lost Future Wages Not Allowed for Fisherman. —

Self-employed commercial fisherman was a “person otherwise engaged in maritime trade” and thus was prevented from recovering nonpecuniary damages or damages for lost future earnings. In re Goose Creek Trawlers, Inc., 972 F. Supp. 946, 1997 U.S. Dist. LEXIS 10736 (E.D.N.C. 1997).

Remittitur Ordered. —

In a products liability action wherein a North Carolina minor died after being hit in the chest with an electrical control device (ECD) by the police, the federal district court granted the ECD manufacturer’s motion for a new trial under Fed. R. Civ. P. 59(a) or for remittitur, in part, and remitted the jury’s verdict from $10 million to $5,491,503.65 because while the court found that there was sufficient evidence presented at trial for the jury to find that the minor’s value to his parents was significant, the jury’s $10 million damages award was excessive even according the parents’ own assessment since the jury’s verdict suggested that it did not reduce its figure to present value. Fontenot v. Taser Int'l, Inc., 2012 U.S. Dist. LEXIS 55699 (W.D.N.C. Apr. 20, 2012).

No evidence was offered showing that the decedent, who died of accidental strangulation in a nursing home, was potentially capable of earning money in excess of that which would be required for her support, and the jury’s award as to these damages, therefore, would necessarily be based on speculation and not supported by evidence; consequently, the trial court erred in instructing the jury that it could award damages for loss of the decedent’s net income, pursuant to G.S. 28A-18-2(b)(4), which required a new trial as to the issue of damages for the decedent’s wrongful death. Estate of Hendrickson v. Genesis Health Venture, Inc., 151 N.C. App. 139, 565 S.E.2d 254, 2002 N.C. App. LEXIS 722 (2002).

Dismissal of Wrongful Death Claim. —

Where an estate administrator asserted a claim for loss of consortium, since the suit that decedent may have instituted was encompassed by the wrongful death statute and the district court had to dismiss the wrongful death action, any loss of consortium claim also had to be dismissed. Latka v. Miles, 2015 U.S. Dist. LEXIS 44430 (E.D.N.C. Mar. 26, 2015), aff'd, 615 Fed. Appx. 122, 2015 U.S. App. LEXIS 15362 (4th Cir. 2015).

E.Punitive Damages

Three Categories of Conduct Affording Recovery. —

By providing for recovery of punitive damages upon a showing of “maliciousness, wilful or wanton injury, or gross negligence” it appears that the General Assembly intended to establish three separate categories of conduct which would afford a recovery. Cole v. Duke Power Co., 81 N.C. App. 213, 344 S.E.2d 130, 1986 N.C. App. LEXIS 2262 (1986).

Recovery for Gross Negligence Even Absent Wilful or Wanton Conduct. —

This section allows recovery of punitive damages in wrongful death actions involving gross negligence even when no wilful or wanton conduct was involved. To establish gross negligence, the plaintiff must show negligence of an aggravated character. Henderson v. LeBauer, 101 N.C. App. 255, 399 S.E.2d 142, 1991 N.C. App. LEXIS 27 (1991).

Gross Negligence Authorizes Punitive Damages. —

Although the term “gross negligence” is not defined in this section, based on prior case law the inclusion of gross negligence would authorize punitive damages in cases where the defendant’s conduct was something less than willful or wanton. Beck v. Carolina Power & Light Co., 57 N.C. App. 373, 291 S.E.2d 897, 1982 N.C. App. LEXIS 2684 , aff'd, 307 N.C. 267 , 297 S.E.2d 397, 1982 N.C. LEXIS 1678 (1982).

This section specifically allows the award of punitive damages upon a showing of gross negligence. Beck v. Carolina Power & Light Co., 57 N.C. App. 373, 291 S.E.2d 897, aff’d, 307 N.C. 267 , 297 S.E.2d 397 (1982). In accord with second paragraph in the main volume. See Cole v. Duke Power Co., 81 N.C. App. 213, 344 S.E.2d 130, 1986 N.C. App. LEXIS 2262 (1986).

“Gross negligence” does not constitute a lower standard of negligence than “willful or wanton conduct” in the context of a wrongful death suit. Benton v. Hillcrest Foods, Inc., 136 N.C. App. 42, 524 S.E.2d 53, 1999 N.C. App. LEXIS 1296 (1999).

Punitive Damages Not Recoverable from Wrongdoer’s Personal Representative. —

The general rule is that there can be no recovery for punitive damages against the personal representative of the deceased wrongdoer, however aggravated the circumstances may be. The sole purpose of the allowance of punitive damages is to punish the wrongdoer. The death of the wrongdoer precludes his being punished by the assessment of punitive damages. Thorpe v. Wilson, 58 N.C. App. 292, 293 S.E.2d 675, 1982 N.C. App. LEXIS 2781 (1982).

Punitive damages are recoverable from municipalities in wrongful death cases on the same basis as from other tort-feasors. Jackson v. Housing Auth., 73 N.C. App. 363, 326 S.E.2d 295, 1985 N.C. App. LEXIS 3274 (1985), aff'd, 316 N.C. 259 , 341 S.E.2d 523, 1986 N.C. LEXIS 2126 (1986).

Reading portions of G.S. 12-3(6) into this section, the North Carolina Wrongful Death Act contains a statutory provision providing for the recovery of punitive damages from bodies politic, which includes municipal corporations. Jackson v. Housing Auth., 316 N.C. 259 , 341 S.E.2d 523, 1986 N.C. LEXIS 2126 (1986).

Recovery from Municipal Corporations. —

This section, the North Carolina Wrongful Death Act, contains a statutory provision providing for the recovery of punitive damages from bodies politic, which includes municipal corporations. Jackson v. Housing Auth., 316 N.C. 259 , 341 S.E.2d 523, 1986 N.C. LEXIS 2126 (1986).

Evidence Meriting Submission of Punitive Damages. —

In wrongful death case, plaintiff’s evidence which tended to show numerous violations of the National Electric Safety Code and of defendant power company’s own standards was sufficient to merit the submission of the issue of punitive damages to the jury. Beck v. Carolina Power & Light Co., 57 N.C. App. 373, 291 S.E.2d 897, 1982 N.C. App. LEXIS 2684 , aff'd, 307 N.C. 267 , 297 S.E.2d 397, 1982 N.C. LEXIS 1678 (1982).

Punitive Damages Unwarranted in the Absence of Wilful and Wanton Conduct. —

Wife of a decedent who was electrocuted on a stairwell at an amphitheater, which was operated by a subsidiary, could not recover punitive damages under G.S. 1D-5(7) , G.S. 1D-15(c) , and G.S. 28A-18-2 because evidence showing: (1) that the subsidiary had been informed prior to the accident that other patrons had been electrocuted on a stairwell; and (2) that the subsidiary took ineffective efforts to address electrical hazards did not demonstrate a wilful and wanton disregard for the safety of others. Faris v. Clear Channel Communs., Inc., 2006 U.S. Dist. LEXIS 63059 (W.D.N.C. Sept. 1, 2006), vacated, 2006 U.S. Dist. LEXIS 65954 (W.D.N.C. Sept. 14, 2006).

When Directed Verdict Proper as to Claim for Punitive Damages. —

In a wrongful death action arising out of negligence, a directed verdict may properly be granted against a plaintiff seeking punitive damages only where the evidence is insufficient as a matter of law to support a jury finding that the defendant wrongfully caused the death of the decedent in a malicious, wilful, wanton or grossly negligent manner. Boyd v. L.G. DeWitt Trucking Co., 103 N.C. App. 396, 405 S.E.2d 914, 1991 N.C. App. LEXIS 814 (1991).

Evidence Sufficient to Support Award of Punitive Damages. —

Evidence of truck driver’s driving record was sufficient for jury to find that trucker was an unsafe driver, that company for which he worked either knew or should have known of his danger to the rest of the driving public, and given the number and severity of his offense, was equally sufficient to support the jury’s finding that company’s negligent entrustment was wilful or wanton, so as to justify denial of defendants’ motions for a directed verdict and for judgment notwithstanding the verdict on plaintiff’s claim for punitive damages arising out of company’s negligent entrustment. Boyd v. L.G. DeWitt Trucking Co., 103 N.C. App. 396, 405 S.E.2d 914, 1991 N.C. App. LEXIS 814 (1991).

Personal Representative’s Claim Not Barred for Failure to Join with Parents. —

Administratrix’s claim for punitive damages for death of stillborn child was not barred merely because it was not joined with the settled claim of the parents; if defendants wished to allege that part of the moneys the parents received in settlement of their claims was for punitive damages, defendants would have a right to support that contention with evidence and have the jury consider it in evaluating the administratrix’s claim for punitive damages. Greer v. Parsons, 103 N.C. App. 463, 405 S.E.2d 921, 1991 N.C. App. LEXIS 800 (1991), aff'd, 331 N.C. 368 , 416 S.E.2d 174, 1992 N.C. LEXIS 275 (1992).

F.Nominal Damages

Applicable Where No Pecuniary Loss Suffered. —

Subdivision (b)(6) supplies a statutory basis which was lacking when previous cases were decided. Nominal damages and costs may now be recovered if the jury finds that the decedent’s death was caused by the defendant’s wrongful act but fails to find that such death caused pecuniary loss. Bowen v. Constructors Equip. Rental Co., 283 N.C. 395 , 196 S.E.2d 789, 1973 N.C. LEXIS 990 (1973); Lentz v. Gardin, 30 N.C. App. 379, 226 S.E.2d 839, 1976 N.C. App. LEXIS 2259 (1976).

Jury Not Required to Award Damages. —

A jury will not be required to award damages when the evidence adduced does not establish to its satisfaction facts which will reasonably support an assessment. In such a situation, by subdivision (b)(6) the legislature authorized “nominal damages when the jury so finds.” Brown v. Moore, 286 N.C. 664 , 213 S.E.2d 342, 1975 N.C. LEXIS 1270 (1975).

Nominal Damages Appropriate. —

Where the jury found that plaintiff had been “damaged by the negligence of the defendant”, that the plaintiff’s intestate did not contribute to her own injuries, and that plaintiff established her cause of action for wrongful death, the trial court erred in refusing to enter an award of nominal damages. Porter v. Leneave, 119 N.C. App. 343, 458 S.E.2d 513, 1995 N.C. App. LEXIS 516 , cert. denied, 342 N.C. 415 , 465 S.E.2d 542, 1995 N.C. LEXIS 752 (1995).

VI.Admission of Dying Declarations

This is a general statute changing the rule of evidence, in which no one has a vested interest and which the law-making power can extend, alter or repeal at will. Williams v. Randolph & C.R.R., 182 N.C. 267 , 108 S.E. 915, 1921 N.C. LEXIS 218 (1921).

Change in rule of evidence is valid and constitutional. Tatham v. Andrews Mfg. Co., 180 N.C. 627 , 105 S.E. 423, 1920 N.C. LEXIS 149 (1920).

What Declarations Permitted. —

This section permits in evidence declarations of the act of killing and circumstances immediately attendant on the act, which constitute a part of the res gestae, uttered when the declarant was in actual danger of death, and made in full apprehension thereof, and when the death accordingly ensued. Tatham v. Andrews Mfg. Co., 180 N.C. 627 , 105 S.E. 423, 1920 N.C. LEXIS 149 (1920).

As in criminal actions for homicide, the dying declarations of one whose wrongful death has been caused, to be admissible upon the trial of an action to recover damages for his wrongful death, must have been voluntarily made while the declarant was in extremis or under a sense of impending death, and must be confined to the act of killing and the attendant circumstances forming a part of the res gestae. Dellinger v. Elliott Bldg. Co., 187 N.C. 845 , 123 S.E. 78, 1924 N.C. LEXIS 414 (1924).

Preliminary Facts Must Be Shown. —

The dying declarations of a deceased person for whose death an action has been brought under this section are competent as evidence, provided the preliminary facts are made to appear. Southwell v. Atlantic C.L.R.R., 189 N.C. 417 , 127 S.E. 361, 1925 N.C. LEXIS 326 (1925).

Otherwise they are not admissible. Holmes v. Wharton, 194 N.C. 470 , 140 S.E. 93, 1927 N.C. LEXIS 130 (1927).

Declarations Made Before Occurrence of Accident. —

Where the declarant was fatally injured in an automobile accident, declarations made by him the night before and two days before undertaking the journey are not admissible as dying declarations. Gassaway v. Gassaway & Owens, Inc., 220 N.C. 694 , 18 S.E.2d 120, 1942 N.C. LEXIS 532 (1942).

Testimony of Statement Held Inadmissible. —

In a workers’ compensation case, testimony of a statement by an officer shortly before his death from coronary occlusion that he “had had a time all the morning” arresting three men who resisted him, was incompetent as a dying declaration, not having been brought within the terms of this section. West v. North Carolina Dep't of Conservation & Dev., 229 N.C. 232 , 49 S.E.2d 398, 1948 N.C. LEXIS 452 (1948).

I.General Consideration

Editor’s Note. —

Many of the cases below were decided under former Chapter 28 or law prior thereto.

The intention of the legislature is that the assets of a decedent shall be administered, as far as may be done, in one proceeding, upon proper safeguards, for the benefit of all the creditors. Atkinson v. Ricks, 140 N.C. 418 , 53 S.E. 230, 1906 N.C. LEXIS 15 (1906).

Priorities Among Creditors Established. —

This section was only designed to recognize priorities among the creditors of the deceased and to establish the order of payment between claimants who have valid debts against the deceased. It was never intended to create a liability which did not otherwise exist. Bowen v. Daugherty, 168 N.C. 242 , 84 S.E. 265, 1915 N.C. LEXIS 22 (1915).

Recognizing priority of classes, this section provides for the administration of assets for the benefit of all the creditors, according to definite and established rules. Farmville Oil & Fertilizer Co. v. Bourne, 205 N.C. 337 , 171 S.E. 368, 1933 N.C. LEXIS 549 (1933).

Strict Construction. —

This section, being in derogation of the equity of a pro rata distribution, should be strictly construed so as not to confer a priority over other creditors unless it is clearly called for. Baker v. Dawson, 131 N.C. 227 , 42 S.E. 588, 1902 N.C. LEXIS 274 (1902); Park View Hosp. Ass'n v. People's Bank & Trust Co., 211 N.C. 244 , 189 S.E. 766, 1937 N.C. LEXIS 50 (1937); Underwood v. Ward, 239 N.C. 513 , 80 S.E.2d 267, 1954 N.C. LEXIS 398 (1954).

If decedent’s estate is not sufficient to pay his debts in full, then they are to be paid in classes, with those of the last class, if and when reached, sharing ratably in what is left. Rigsbee v. Brogden, 209 N.C. 510 , 184 S.E. 24, 1936 N.C. LEXIS 278 (1936).

Duty of Representative. —

To carry out the order designated by this section is a duty of the representative. State v. Oliver, 104 N.C. 458 , 10 S.E. 709, 1889 N.C. LEXIS 223 (1889).

Testator Cannot Change Statutory Priority. —

A testator may not so dispose of his estate as to avoid the payment of his debts in accordance with the priorities fixed by this section. First Sec. Trust Co. v. Lentz, 196 N.C. 398 , 145 S.E. 776, 1928 N.C. LEXIS 390 (1928).

Where debtor’s lands are sold under order of court to make assets, proceeds remain real estate until all liens are discharged, and are to be applied to payment of liens in the order of their priority, and only the residue, if any, is payable to administrator as personal property to be distributed in the order provided by this section. Moore v. Jones, 226 N.C. 149 , 36 S.E.2d 920, 1946 N.C. LEXIS 399 (1946) (citing) Murchison v. Williams, 71 N.C. 135 , 1874 N.C. LEXIS 30 (1874). See Williams v. Johnson, 230 N.C. 338 , 53 S.E.2d 277, 1949 N.C. LEXIS 642 (1949).

Creditor Must First Exhaust Security. —

Upon the death of an obligor the administration laws step in and determine the settlement of his estate. These have heretofore been construed by the Supreme Court to favor the bankruptcy rule. Thus a secured creditor is required to exhaust his security and then prove his claim for any balance still remaining or unpaid. Rierson v. Hanson, 211 N.C. 203 , 189 S.E. 502, 1937 N.C. LEXIS 41 (1937).

Holder of Secured Note Must Exhaust Security and Then File Claim for Balance. —

The holder of a note executed or assumed by the deceased, and secured by a deed of trust or mortgage, must first exhaust the security and apply the same on the debt, and may then file a claim against the estate for the balance due, if any. But the holder of such note may not file claim and receive pro rata dividend on the basis of the full claim. Montsinger v. White, 240 N.C. 441 , 82 S.E.2d 362, 1954 N.C. LEXIS 446 (1954).

Execution on a personal money judgment after the death of the debtor is barred. The holder of the judgment must look to the duly appointed administrator for payment of the judgment according to the priorities prescribed by this section. Henderson County v. Osteen, 28 N.C. App. 542, 221 S.E.2d 903, 1976 N.C. App. LEXIS 2753 (1976), rev'd, 292 N.C. 692 , 235 S.E.2d 166, 1977 N.C. LEXIS 1171 (1977).

Validity of Unrecorded Chattel Mortgage Not Affected. —

This statutory provision does not bear upon whether an unrecorded chattel mortgage, valid as against the intestate, is to like extent valid against his estate. Coastal Sales Co. v. Weston, 245 N.C. 621 , 97 S.E.2d 267, 1957 N.C. LEXIS 648 (1957).

This section creates no preference for payment on bank stock out of the assets of the estate of a deceased stockholder, and none results from the application of the pertinent principles of equity. Hood v. Darden, 206 N.C. 566 , 174 S.E. 460, 1934 N.C. LEXIS 246 (1934).

Claim by Former Spouse. —

Distributive award that the trial court entered in favor of an ex-wife after her former husband died was not part of the husband’s estate, and the trial court properly ordered the husband’s personal representative to pay the award before she paid claims against the estate. Painter-Jamieson v. Painter, 163 N.C. App. 527, 594 S.E.2d 217, 2004 N.C. App. LEXIS 400 (2004).

Superior court erred in dismissing an ex-wife’s complaint — arising from an equitable distribution award ordered (ED Order) by the district court against her ex-husband, prior to his death — as untimely because, while the claim was not time-barred, the wife’s claim for a declaratory judgment was directly related to enforcement of the ED Order, was not a claim against the estate, and had to be enforced in the district court, which had exclusive jurisdiction over the enforcement of its equitable distribution order. Smith v. Rodgers, 263 N.C. App. 662, 824 S.E.2d 155, 2019 N.C. App. LEXIS 100 (2019).

Fees of a referee taxed against an administrator are not a preferred debt under this section. Cobb v. Rhea, 137 N.C. 295 , 49 S.E. 161, 1904 N.C. LEXIS 358 (1904), dismissed, 140 N.C. 651 , 52 S.E. 1038, 1905 N.C. LEXIS 74 (1905).

Where debtor’s lands are sold under order of court to make assets, no part of the proceeds may be taxed with costs of administration. However, a referee’s fee by G.S. 6-21 is taxable in the discretion of the court. Williams v. Johnson, 230 N.C. 338 , 53 S.E.2d 277, 1949 N.C. LEXIS 642 (1949).

II.Specific Liens on Property

Editor’s Note. —

Many of the cases below were decided under former Chapter 28 or law prior thereto.

The evident purpose of this section relating to debts of the first class is to benefit the estate, particularly the creditors thereof next in line for payment. Underwood v. Ward, 239 N.C. 513 , 80 S.E.2d 267, 1954 N.C. LEXIS 398 (1954).

No Equity Preserved in Land in Which Estate Has No Interest. —

Since the priority of the first class is limited to a situation where the value of the property equals or exceeds the amount of the specific lien thereon, the personal representative may preserve any equity for the benefit of other creditors and of beneficiaries. But where the estate and its creditors and beneficiaries have no right, title or interest in the real property on which the creditor has a specific lien, no equity can be preserved. Underwood v. Ward, 239 N.C. 513 , 80 S.E.2d 267, 1954 N.C. LEXIS 398 (1954).

Notes Secured by Liens on Lands Held by Entireties. —

Husband and wife were jointly and severally liable on notes secured by liens on lands held by them by entireties. Upon the death of the husband, the liability of his estate for one half the balance due on the notes at the time of his death is not a debt coming within the first class of priority, since even though the debt is secured by specific lien on the property, the property is not an asset of the estate. Underwood v. Ward, 239 N.C. 513 , 80 S.E.2d 267, 1954 N.C. LEXIS 398 (1954).

A deed of trust executed to secure a debt which by laws had a specific lien on property, as provided by the first class, has priority over the payment of taxes provided for eo nomine in the third class. Farmville Oil & Fertilizer Co. v. Bourne, 205 N.C. 337 , 171 S.E. 368, 1933 N.C. LEXIS 549 (1933).

Judgment Lien Is Not “Specific Lien on Property”. —

The lien of a docketed judgment, which is eo nomine put in the fifth class, is not a “specific lien on property,” unless made so by its terms, as to come within the first class mentioned in this section. Stewart v. Doar, 205 N.C. 37 , 169 S.E. 804, 1933 N.C. LEXIS 454 (1933).

But Section Does Not Nullify Judgment Lien. —

There is nothing in this section, or in any other provision of the law, that indicates intent to nullify the lien of a docketed judgment or to destroy any right acquired under the law prior to the death of the judgment debtor. Moore v. Jones, 226 N.C. 149 , 36 S.E.2d 920, 1946 N.C. LEXIS 399 (1946).

Tax Liens Take Priority Over Estate Administration Costs. —

The conflict between this section and G.S. 105-356 was resolved in favor of city and county/appellants who sought to recover back taxes and interest through a foreclosure proceeding on property, although the guardian ad litem and public administrator asserted that such foreclosure would cause the tax lien to take precedence over the costs of estate administration in violation of this section and would result in inequity should the sale fail to render sufficient funds to cover both taxes and costs. City of Durham v. Hicks, 135 N.C. App. 699, 522 S.E.2d 583, 1999 N.C. App. LEXIS 1227 (1999).

III.Funeral Expenses

Editor’s Note. —

Many of the cases below were decided under former Chapter 28 or law prior thereto.

Funeral and Medical Expenses Are of Debtor Only. —

The funeral and medical expenses referred to in the paragraphs designated “Second class” and “Sixth class” are those of the debtor, and not of his wife, child or tenants. Baker v. Dawson, 131 N.C. 227 , 42 S.E. 588, 1902 N.C. LEXIS 274 (1902).

Husband’s estate is liable for funeral expenses of his predeceased wife, in preference to the beneficiaries under his will. Bowen v. Daugherty, 168 N.C. 242 , 84 S.E. 265, 1915 N.C. LEXIS 22 (1915).

Third Party Paying. —

The provisions of the paragraph designated “Second class,” inure to the benefit of one who after having paid such expenses as a matter of affection and duty wants to recover the same from the estate. Ray v. Honeycutt, 119 N.C. 510 , 26 S.E. 127, 1896 N.C. LEXIS 325 (1896).

IV.Dues, Taxes, and Claims under Federal Law

Editor’s Note. —

The case below was decided under former Chapter 28 or law prior thereto.

Federal Estate Tax. —

See Wachovia Bank & Trust Co. v. Green, 236 N.C. 654 , 73 S.E.2d 879, 1953 N.C. LEXIS 545 (1953); Tolson v. Young, 260 N.C. 506 , 133 S.E.2d 135, 1963 N.C. LEXIS 738 (1963); Adams v. Adams, 261 N.C. 342 , 134 S.E.2d 633, 1964 N.C. LEXIS 462 (1964).

V.Dues, Taxes, and Claims under State Law

Editor’s Note. —

Many of the cases below were decided under former Chapter 28 or law prior thereto.

Tax Judgment under G.S. 105-375 Does Not Affix Lien on Property. —

As a judgment against the property of the listed taxpayer, directing the sale of the property to satisfy the tax lien, the tax judgment established under G.S. 105-375 is not a “debt” within the meaning of former G.S. 28-105, nor does it affix a lien to the taxpayer’s property. Henderson County v. Osteen, 28 N.C. App. 542, 221 S.E.2d 903, 1976 N.C. App. LEXIS 2753 (1976), rev'd, 292 N.C. 692 , 235 S.E.2d 166, 1977 N.C. LEXIS 1171 (1977).

It represents a final order for the sale of the delinquent taxpayer’s property. Henderson County v. Osteen, 28 N.C. App. 542, 221 S.E.2d 903, 1976 N.C. App. LEXIS 2753 (1976), rev'd, 292 N.C. 692 , 235 S.E.2d 166, 1977 N.C. LEXIS 1171 (1977).

Distinction Between Tax Judgment Strictly in Rem and in Personam Judgment. —

See Henderson County v. Osteen, 28 N.C. App. 542, 221 S.E.2d 903, 1976 N.C. App. LEXIS 2753 (1976), rev'd, 292 N.C. 692 , 235 S.E.2d 166, 1977 N.C. LEXIS 1171 (1977).

Method of Collecting Taxes. —

Former G.S. 105-412 indicated that the ordinary methods of collecting taxes by a sheriff do not apply to collection of taxes from a decedent’s estate. Sherrod v. Dawson, 154 N.C. 525 , 70 S.E. 739, 1911 N.C. LEXIS 305 (1911).

Taxes Assessed against Life Tenant. —

See Rigsbee v. Brogden, 209 N.C. 510 , 184 S.E. 24, 1936 N.C. LEXIS 278 (1936).

Tax-Sale Certificate Is Not a Preferred Claim. —

A tax-sale certificate in the hands of a remainderman, representing taxes paid by the remainderman during the lifetime of the life tenant, may not be proved as a preferred claim against the estate of the life tenant, since the remainderman’s sole remedy upon the tax-sale certificate is by foreclosure under the provisions of former C.S., G.S. 8028 (see now G.S. 47-108.25 ). Rigsbee v. Brogden, 209 N.C. 510 , 184 S.E. 24, 1936 N.C. LEXIS 278 (1936).

Former provisions that taxes should be paid by the personal representative in the third class of priority had no application to the statutory action to foreclose a tax-sale certificate. Guilford County v. Estates Admin., 213 N.C. 763 , 197 S.E. 535, 1938 N.C. LEXIS 190 (1938).

Nor Are Assessments for Public Improvements. —

See Rigsbee v. Brogden, 209 N.C. 510 , 184 S.E. 24, 1936 N.C. LEXIS 278 (1936).

This section has no application to the payment of assessments made against land by a municipality for the purpose of improving streets. City of High Point v. Brown, 206 N.C. 664 , 175 S.E. 169, 1934 N.C. LEXIS 271 (1934); Town of Saluda v. County of Polk, 207 N.C. 180 , 176 S.E. 298, 1934 N.C. LEXIS 416 (1934).

No Application to Charges for Water and Gas Connections. —

Charges for water and gas connections, incurred during the lifetime of a life tenant and unpaid at his death, do not constitute a preferred claim against his estate as taxes assessed on the estate prior to his death, since in no event would such charges stand upon a higher plane than assessments for permanent improvements. Rigsbee v. Brogden, 209 N.C. 510 , 184 S.E. 24, 1936 N.C. LEXIS 278 (1936).

VI.Judgment Liens

Editor’s Note. —

Many of the cases below were decided under former Chapter 28 or law prior thereto.

Application of Fifth Class Provision to Funds in Administrator’s Hands. —

The provision of the paragraph designated “Fifth class” applies to funds in the administrator’s hands. Matthews v. Peterson, 150 N.C. 134 , 63 S.E. 721, 1909 N.C. LEXIS 6 (1909).

Judgments Paid Out of Personalty. —

The paragraph designated “Fifth class” does not mean that the judgment shall be paid out of the realty of the decedent upon which it has become a lien. When a debtor dies, against whom there is a judgment docketed, his land descends to his heirs or vests in his devisees, and his personal property vests in his administrator or executor, just as if there were no judgment against him, and the whole estate is to be administered just as if there were no judgment, that is to say, the personal property must be sold, if necessary, and all the personal assets collected, and out of these personal assets all the debts must be paid, if there be enough to pay all docketed judgments as well as others. The reason for this mode of administration is that, although a lien on land exists, the judgment should be paid out of the personal estate, if any, in exoneration of the land for the benefit of the heir or devisee. Lee v. Eure, 82 N.C. 428 , 1880 N.C. LEXIS 264 (1880).

Creditor Must File Claim. —

If a judgment creditor wishes to share in the distribution of the personal estate of his deceased judgment debtor, and to protect himself against the running of the statute of limitations as against the debt (G.S. 1-22), he must file his claim with the personal representative of the deceased. Williams v. Johnson, 230 N.C. 338 , 53 S.E.2d 277, 1949 N.C. LEXIS 642 (1949).

Extent of Lien. —

If the real estate upon which the judgment is a lien is of less value than the amounts of the judgment, then the extent of the lien is the value of the land only. Jerkins v. Carter, 70 N.C. 500 , 1874 N.C. LEXIS 267 (1874).

If the real estate upon which the judgment is a lien is of less value than the amount of the judgment, and a part of the lien has been paid out of the personalty (which is first liable for the payment) the extent of the lien is the difference between the value of the land and the amount paid out of the personalty. It is not the difference between the amount of the lien and the amount paid from the personalty. Murchison v. Williams, 71 N.C. 135 , 1874 N.C. LEXIS 30 (1874).

When Priorities Determined. —

The priorities among judgment creditors, which are dependent upon the date of their respective recordation, are to be determined as they existed at the death of the debtor, after which they remain unaffected by lapse of time until barred by the statute of limitations or by executions issued upon the judgments. Town of Tarboro v. Penders, 153 N.C. 427 , 69 S.E. 425, 69 S.E. 636, 1910 N.C. LEXIS 103 (1910); Farmville Oil & Fertilizer Co. v. Bourne, 205 N.C. 337 , 171 S.E. 368, 1933 N.C. LEXIS 549 (1933).

Priority over Mortgage. —

Where realty sold under order of court to make assets is subject to a docketed judgment and a subsequently recorded mortgage, the judgment must be satisfied in full before application of any part of the proceeds to the mortgage or to the payment of other debts. Moore v. Jones, 226 N.C. 149 , 36 S.E.2d 920, 1946 N.C. LEXIS 399 (1946).

Statute of Limitations Not Affected. —

The fact that judgments docketed and in force, which have become a lien upon decedent’s property at the date of his death, have priority over certain other claims, does not stop the running of the statute of limitations upon such judgments. Daniel v. Laughlin, 87 N.C. 433 , 1882 N.C. LEXIS 92 (1882).

The expiration of the judgment lien terminates the authority of the representative to pay such lien. The judgment lien must be in force at the time of payment. Matthews v. Peterson, 150 N.C. 132 , 63 S.E. 721 (1909).

Application of Proceeds under a Consent Judgment to Sell Lands. —

Where a consent judgment provided that a commissioner be appointed to sell certain lands of a deceased person and pay the net proceeds to the administratrix of the deceased to pay the debts of his estate, the distribution of these proceeds was thereunder to be made under the provisions of this section, and a judgment ordering them to be paid to satisfy the lien of a judgment creditor on the lands of the estate, adjudging it a prior lien, was reversible error. First Nat'l Bank v. Mitchell, 191 N.C. 190 , 131 S.E. 656, 1926 N.C. LEXIS 33 (1926).

VII.Medical Expenses

Editor’s Note. —

Many of the cases below were decided under former Chapter 28 or law prior thereto.

The words “medical services,” include all services rendered to the deceased, because of his illness, upon the advice of his physician, which were reasonably necessary for his care and comfort and for his proper treatment by his physicians. Park View Hosp. Ass'n v. People's Bank & Trust Co., 211 N.C. 244 , 189 S.E. 766, 1937 N.C. LEXIS 50 (1937).

Board of Graduate Nurses Included in Medical Services. —

The board of graduate nurses, who attended the deceased while he was a patient in plaintiffs’ hospital, was a claim included in the term “medical services” as used in this section. Park View Hosp. Ass'n v. People's Bank & Trust Co., 211 N.C. 244 , 189 S.E. 766, 1937 N.C. LEXIS 50 (1937).

Termination of Old Age Assistance. —

When old age assistance was terminated by death of the recipient, the county’s claim against the recipient’s estate under former G.S. 108-30.1 had to be satisfied out of the personal property in the estate to the extent it was sufficient to pay claims of the sixth class before resorting to the real property for satisfaction of the debt. Brunswick County v. Vitou, 6 N.C. App. 54, 169 S.E.2d 234, 1969 N.C. App. LEXIS 1139 (1969).

OPINIONS OF ATTORNEY GENERAL

Priority of Portion of Funeral Bill Not a Limitation on Amount. — See opinion of Attorney General to Mrs. Martha O. Comer, CSC, 40 N.C.A.G. 30 (1970), issued under prior law.