Orange County NcArchives Court.....Tapp Estate, Mary 1894
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Connie Ardrey n/a December 7, 2009, 8:19 am

Source: North Carolina Reports February Term
Written: 1894

In the Matter of the Administration on Estate of Mary Tapp, Deceased

Application for Letters of Administration-Issue-Disputed Title to Property

A dispute as to the title of property alleged in application for letters of 
administration to belong to the decedent, is not such an issue of fact as is 
required by section 1382 of The Code to be transferred to the Superior Court 
for trial.

Richard L. Tapp on 27 March, 1893, applied before S.M. Gattis, Clerk of the 
Superior Court of Orange, for letters of administration on the estate of Mary 
Tapp, deceased, in which it was stated that the value of the estate was about 
$475, and that "the estate of the said deceased, if she had any at all, 
consists of a note on Daniel Thompson for $500 or $600, which the executor of 
William Tapp claims as a part of testator's estate, and suit against Thomas 
Tapp is now pending for its recovery, and that R.L. Tapp, J.T.W. Tapp and 
Catherine Thompson are entitled as heirs and distributees thereof."

Thereupon J.T.W. Tapp, objecting to the issuing of letters, etc., file his 
complaint as follows:

"1. That Mary Tapp died 1 April 1888, and hitherto no one has applied for 
letters of administration upon her estate; that she left surviving her 
husband, W.H. Tapp, who died 9 February, 1892, and who, during his lifetime, 
made no application for letters of administration, because Mary Tapp was 
indebted to no one.

"2. That said Mary Tapp owned and possessed a note of hand upon one Daniel F. 
Thompson, the only personal property she had, and during her lifetime, and 
with the consent of her husband, she gave said bond to J.T.W. Tapp, who has 
had said bond in his possession and claimed the ownership thereof for more 
than three years, and the sole object of Richard L. Tapp is applying for 
letters of administration upon the estate of said Mary Tapp is to worry and 
annoy the said J.T.W. Tapp, and that said Richard has declared his intention 
and purpose to be to expend the entire estate unless he could carry his point, 
as complainant is informed and believes.

"Wherefore, complainant denies that there is any necessity for the appointment 
of an administrator upon said estate for the reasons above set forth; and even 
if there was that said Richard is not a proper person to entrust with its 
management, and he prays that the application be refused."

Richard L. Tapp, answering the complaint of J.T.W. Tapp filed in this 
proceeding, said:

"1. That article one of his complaint is true, except that the allegation that 
Mary Tapp 'was indebted to no one' is not true.

"2. That the whole of article two is wholly untrue, and he denies the same."

For a further defense the said Richard L. Tapp alleges:

"1. That the said note upon D.F. Thompson as referred to is the right and 
property of the testator of William H. Tapp, and at the time of the settlement 
with one Sam Thompson, the administrator of Josiah Thompson, a certain amount 
of money was paid over to William Tapp, being the share of the said Mary Tapp 
in the personal property of her father's estate, which said money was taken up 
from the table and kept by the said Mary without the knowledge or consent of 
the said William Tapp; that frequently the said William Tapp, by gentle means 
and persuasion, tried to obtain possession of the said money, but could not by 
such means do so; that the said Mary Tapp, still unknown to the said William 
Tapp, loaned the said money to Daniel F. Thompson, taking his note therefor, 
payable to herself, which note or bond she closely kept in her possession 
locked in a drawer until the day of her death, when the said J.T.W. Tapp, by 
some means unknown to the said Richard, got possession of the key of said 
drawer and took possession of the said note and holds the same unlawfully. 
That as to the last paragraph in the nature of a prayer the said Richard 
denies the same, and reiterates that under the law he is the proper person to 
administer upon said estate, and demands that letters be granted to him."

The Clerk, being of opinion that an issue of fact as to whether Mary Tapp left 
any estate was raised by the pleadings, transferred the proceedings to the 
Superior Court for trial, as provided in section 1382 of The Code of North 
Carolina.

Brown, J., at August Term, 1893, of Orange, rendered the following judgment:

"It is admitted that the only estate of Mary Tapp consists of an alleged claim 
to a certain not for $500 or $600 against one Daniel Thompson. It is contended 
by J.T.W. Tapp that his is the owner of said note, and therefore it is 
unnecessary to appoint an administrator and it is contended that the title to 
this note should be tried in this proceeding. I don't think that is an issue 
of fact contemplated by section 1382 of The Code. The issues of fact there 
referred to are those growing out of a contested administration. It is not 
contemplated that the disputed title to property claimed for the intestate 
should be tried and determined under that section. If it should be determined 
in this proceeding that the said note was or was not the property of said 
intestate's estate, such judgment would not be binding on a future 
administrator of the estate, and if adverse to J.T.W. Tapp there is no method 
of enforcing the judgment. The presence of an administrator of Mary Tapp is 
essential to properly determine the title to this note. The respondent, J.T.W. 
Tapp, can not be unjustly hurt, and it is no hardship upon him. If the 
administrator fails in his suit he would be mulcted with costs. If J.T.W. Tapp 
has acquired the note in the manner as alleged in the affidavit of Richard 
Tapp it ought to be investigated, and that can only be properly done in an 
action wherein the administrator of Mary Tapp is a party plaintiff and J.T.W. 
Tapp (and D.F. Thompson, possibly) defendants. The Clerk is directed to 
appoint Richard Tapp, or some other suitable person, other than J.T.W. Tapp, 
as administrator according to law."

From this ruling J.T.W. Tapp appealed.

Mr. J.W. Graham for appellant
Mr. J.A. Long for appellee

Per Curiam. For the reasons given by the Judge below the judgment is Affirmed.


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