Judge WELLS concurring.

Judge ORR dissenting.

This is a proceeding pursuant to G.S. 28A-9-1(a)(3) to have respondent removed as executor of the Estate of Annie Mae S. Davis. Petitioners are residuary beneficiaries under Ms. Davis's will. Ms. Davis died on 9 April 1985, and her will was admitted to probate on 22 April 1985. The will named respondent as executor and further provided that "my executor shall employ the law firm of Watkins, Finch Hopper, Attorneys at Law, as the attorneys to assist in the handling and settling of my estate." Respondent is a member of the law firm Watkins, Finch Hopper. Letters Testamentary were issued to respondent as executor of the Estate of Annie Mae S. Davis on 22 April 1985.

On 12 August 1985, the assistant clerk of superior court issued to respondent a notice that the inventory of the estate required by G.S. 28A-20-1 was due. The inventory was not filed until 21 October 1985. The assistant clerk also issued a notice stating that the annual account was due on 2 June 1986, and the annual account was not filed until 17 June 1987. On 11 December 1985, pursuant to a petition filed by respondent, the clerk of superior court entered an order allowing respondent to pay to himself eighty percent of the commissions to be allowed for administering and settling the estate. On 16 September 1986, respondent filed a petition for the payment of the remainder of the commissions and the clerk allowed payment by order entered the same day.

The annual accounting showed that the following payments were made to the law firm of Watkins, Finch Hopper: $65,000 on 2 January 1986, $4,000 on 30 April 1986, and $20,000 on 19 March 1987, for a total of $89,000. These payments included respondent's executor's commission, and the payments were approved by the clerk.

Petitioners initially filed a petition to revoke respondent's Letters Testamentary on 19 June 1987; thereafter they filed an amended petition on 24 June 1987. The petition alleged that respondent had violated his fiduciary duty through default and misconduct within the meaning of G.S. 28A-9-1(a)(3). Specifically, petitioners alleged that respondent had unlawfully converted sums paid to his law firm, had misrepresented to one of the beneficiaries that respondent was entitled to receive the amounts paid as an executor's commission and attorney's fees, and had been in default of his duties as executor by failing to file the account in a timely manner.

The clerk of superior court entered an order disqualifying herself to hear the petition, and the petition was heard by the senior resident superior court judge pursuant to G.S. 28A-2-3. The judge concluded that respondent was not guilty of default or misconduct in the exercise of his duties and denied the petition to revoke the Letters Testamentary. Petitioners appeal.

PARKER, Judge.

For the reasons discussed herein, we affirm the judge's ruling denying the petition. Petitioners bring forward ten assignments of error. Four of petitioner's assignments of error concern the admission of testimony of the clerk of superior court. Petitioners contend that the testimony was inadmissible as parol evidence of court proceedings. Petitioners also contend that the judge erred in denying their motion to strike part of the testimony on the grounds that it was not based on the witness's own recollection. Petitioners next assign error to the judge's finding that the receipts and expenditures on which the executor's commission was based included proceeds from the sale of real property. Petitioners' remaining assignments of error concern the judge's conclusions to the effect that the payment of attorney's fees to respondent's law firm was not grounds for revocation of respondent's Letters Testamentary.

At the outset we note that the parties stipulated in open court that the amount or reasonableness of the legal fee was not at issue in this proceeding. The following exchange took place among counsel and the judge:

MR. ADAMS: If the Court please, the respondent as it understood the petitioner has no further evidence, and if the question of the amount of the fee comes before the Court, then we would need time to marshal the evidence and go through that; but we did not understand this proceeding is to question of the amount of the fee but whether or not he was entitled to any fee and illegally took it.

MR. PARKER: I agree with that, Your Honor. In fact, the Courts have held that in a proceeding of this nature it's not the function of the Court to adjust the rights of the parties but simply to determine whether Letters Testamentary should be revoked; and that's really the only issue. The other would come later in a separate matter.

Thus, the sole legal question before the judge at the hearing below was whether respondent was guilty of default or misconduct justifying revocation of his Letters Testamentary and his removal as executor.

In Jones v. Palmer, 215 N.C. 696, 698-99, 2 S.E.2d 850, 852 (1939), our Supreme Court, construing the predecessor of G.S. 28A-9-1, stated:

Such action is usually instigated by the necessity of presently preserving the estate, rather than for punishment or correction of personal representatives.

. . .

. . . The exigencies of administration require the exercise of sound judgment, and this necessarily implies discretion in its supervision. This statute provides for the revocation of letters of administration and the removal of administrators from office upon complaint that the person to whom the letters were issued "has been guilty of default or misconduct in the due execution of his office." If, upon a hearing, "the objections are found valid, the letters issued to such person must be revoked and superseded and his authority shall thereupon cease."

"Must" denotes imperative action, indeed, but the action becomes imperative only when the conditions upon which it shall be taken are clear and compelling. Before taking action, the clerk must determine the validity of the charges brought against the administrators, and this, . . . includes a finding of their sufficiency to justify removal, in determining which he must exercise his good judgment under the guidance of law and precedent. In re Battle, 158 N.C. 388, 74 S.E. 23. While strict supervision is demanded, no matter within the guardianship of the law calls more strongly for the application of sound business principles. Rules do not think; ministerially applied they are manifestly inadequate.

The clerk is not compelled to remove an administrator for failing promptly to file an inventory when in his judgment the estate has received no damage; C.S., 48, 49; nor for failure to file account; C.S., 106; nor for delay in winding up an administration. Instead of removal, the performance of all these duties may be enforced by appropriate proceeding. Atkinson v. Ricks, 140 N.C. 418, 53 S.E. 230; Barnes v. Brown, 79 N.C. 401. But he may remove an executor or administrator for such failure, and must do so when he finds the omission of duty is sufficiently grave to materially injure or endanger the estate, or if compliance with the orders of the court in the supervision and correction of the administration are not promptly obeyed.

The appeal from the judge of the Superior Court is heard upon matters of law and legal inference. Wright v. Ball, 200 N.C. 620, 158 S.E. 192; In re Will of Gulley, 186 N.C. 78, 118 S.E. 839. We do not regard the failure of the court below to find facts as material, since upon such facts as might be found from the evidence we cannot find an abuse of discretion.

As stated in In re Estate of Galloway, 229 N.C. 547, 50 S.E.2d 563 (1948):

That is, the question before the clerk is whether the administrator, "has been guilty of default or misconduct in the due execution of his office." G.S. 28-32. In passing upon such question, the clerk exercises a legal discretion which may be reviewed on appeal.

229 N.C. at 551, 50 S.E.2d at 566. (Citations omitted.) In this case the clerk of superior court recused herself because of a potential conflict of interest. The resident superior court judge sat in the clerk's stead. On appeal, this Court may not substitute its findings for those of the judge if there is evidence to support the findings of the judge. In re Estate of Swinson, 62 N.C. App. 412, 303 S.E.2d 361 (1983).

Against this background, we now discuss each of petitioners' assignments of error. Petitioners first contend that the judge erred in admitting certain testimony of the clerk, in denying petitioners' motion to strike portions of respondent's answer which were supported by the testimony, and in basing findings of fact and conclusions of law upon the testimony. The testimony in question concerned conferences between the clerk and respondent with regard to the Davis estate.

The testimony was crucial to respondent's defense because it established that the clerk had orally approved respondent's actions in several instances where such approval was required. First, the clerk testified that she had orally granted respondent extensions of time for filing both the inventory and the annual account of the estate. Statutes provide that a personal representative may obtain further time to file inventories and accounts from the clerk of superior court. G.S. 28A-20-2(a); G.S. 28A-21-4.

The testimony was also essential to respondent's explanation of his payments to the law firm. A personal representative is entitled to commissions in an amount not to exceed five percent of the receipts and expenditures, G.S. 28A-23-3(a), and the clerk of superior court may allow commissions during the course of administration. G.S. 28A-23-3(c). An attorney who serves as a personal representative may be allowed counsel fees for services rendered to the estate as an attorney. G.S. 28A-23-4. All commissions and fees must, however, be approved by the clerk. In re Estate of Longest, 74 N.C. App. 386, 393, 328 S.E.2d 804, 809, disc. rev. denied and appeal dismissed, 314 N.C. 330, 333 S.E.2d 488 (1985).

In the present case, the clerk's written orders approved payment of "commissions" but failed to specify the amount. The orders also did not indicate that any attorney's fees had been approved. The total amount paid to the law firm ($89,000) was slightly less than ten percent of the total receipts and expenditures ($956,754.32). Thus, the amount paid clearly exceeded the maximum executor's commission of five percent. The clerk testified that, during a conference with respondent in October or November of 1985, she told him that she would allow the full five percent commission plus an additional five percent of receipts and disbursements as attorney's fees. This testimony established that respondent had obtained verbal authorization from the clerk to pay the amounts shown in the account.

Petitioners contend that the testimony was not admissible to establish the clerk's verbal approval of the commission and fees. Petitioners rely on State v. Tola, 222 N.C. 406, 23 S.E.2d 321 (1942) to argue that the clerk's actions may not be proven by parol evidence. Petitioners also rely on G.S. 7A-109, which requires the clerk to maintain records of court actions, including proceedings in estates.

In State v. Tola, the court held that a judgment could not be explained or contradicted by parol testimony. Tola, 222 N.C. at 408, 23 S.E.2d at 323. Tola, however, involved a criminal defendant who was seeking to explain a judgment of guilty in support of his plea of former jeopardy, and the defendant was actually permitted to introduce the evidence at trial. Id. In addition, the Tola court recognized that such testimony would be admissible in a separate proceeding to amend the record. Id. at 408-09, 23 S.E.2d at 323.

We do not find Tola to be controlling in the present case. A case more directly on point is Trust Co. v. Toms, 244 N.C. 645, 94 S.E.2d 806 (1956). In Toms the beneficiaries of a trust filed a motion seeking to hold the original trustee liable for funds converted by a successor trustee. Although the clerk of superior court had entered an order appointing the successor trustee, the docket did not show that the order was approved by the judge, which was required by statute. The original trustee presented affidavits to establish that the order had been approved by the judge but that the papers showing such approval had been lost, and the motion was denied.

On appeal, the movants contended that the docket was conclusive and could not be supplemented, modified, or corrected. The Supreme Court disagreed:

The attack here made on the order of resignation is not a collateral attack. It is a motion in the cause in which the court, upon the assertion of respondent that all of the record has not been recorded, has the power and should determine what in fact was done.

It is to provide a permanent record and guard against loss of the original papers that the statute . . . directs the clerk to keep books in which the papers may be transcribed. The failure of the clerk to comply with the statute by neglecting to record all or a part of a proceeding does not render the proceeding void. Any interested party may, by motion, require the proceeding to be recorded . . . . The power of a court to make its records speak the truth cannot be doubted. To hold otherwise would make a mockery of justice.

Trust Co. v. Toms, 244 N.C. at 649-50, 94 S.E.2d at 810.

Like the respondent in Toms, respondent in this case introduced parol evidence to demonstrate that his actions had been approved by the court. Accordingly, we find no error in the admission of the clerk's testimony.

Petitioners next contend that the judge erred in permitting the clerk to base some of her testimony on a written memorandum. The testimony in question concerned the services performed by respondent upon which the clerk based the award of attorney's fees. The record discloses that the clerk prepared a list of such services after reviewing the estate file and the answer filed by respondent in this case; she testified from this list. Petitioners argue that the judge erred in denying their motion to strike the testimony on the grounds that it was not based on the witness's personal knowledge or independent recollection. We disagree.

The testimony is clearly not admissible as a recorded recollection because the list was not prepared when the matter was fresh in the witness's memory. See Rule 803(5), N.C. Rules Evid. Testimony based on a written memorandum may also be admitted, however, when the witness uses the writing to refresh her memory. State v. Smith, 291 N.C. 505, 516, 231 S.E.2d 663, 670 (1977). A writing used for such a purpose need not be prepared by the witness herself, and it may be used to refresh the memory of the witness prior to trial. Id. at 516-17, 231 S.E.2d at 671. The testimony should be excluded if it is clearly a mere recitation of the memorandum, but a ruling on a motion to strike the testimony on these grounds is a matter within the discretion of the trial judge. Id. at 518, 231 S.E.2d at 671-72.

Since the clerk independently recalled that she had awarded attorney's fees for services performed by respondent and she used the prepared list only to specify what the services were, the judge, sitting without a jury, did not abuse his discretion by refusing to strike the testimony. Moreover, reasonableness of the fee not being at issue in this proceeding, the admission of the testimony could not have been prejudicial to petitioners.

Petitioners next assign error to the judge's finding of fact that the clerk could allow commissions on the sum of $956,754.32. Petitioners argue that this sum erroneously includes the amount of $71,384.89 which was received from the sale of real property in the estate. The will directed respondent to sell the property and distribute the proceeds to the residuary beneficiaries.

Petitioners' argument is based on G.S. 28A-23-3(b), which provides in pertinent part:

Where real property is sold to pay debts or legacies, the commission shall be computed only on the proceeds actually applied in the payment of debts or legacies.

Petitioners contend that payment to residuary takers does not constitute payment of "legacies" and, therefore, respondent was not entitled to commissions on the proceeds.

We do not find it necessary to construe the term "legacy" in order to resolve the question before us in this case. The title to real property devised under a will vests in the devisees at the time of the testator's death. G.S. 28A-15-2(b). Land is not an asset of the estate until it is sold and the proceeds are received by the personal representative. Linker v. Linker, 213 N.C. 351, 354, 196 S.E. 329, 331 (1938). When land is sold to pay the debts of an estate, any surplus retains the status of real estate and remains vested in the devisees. Id.

Under G.S. 28A-23-3(a), a personal representative's commission is based on the receipts and expenditures of the estate. Under G.S. 28A-15-1(c), the personal representative may sell real estate "to obtain money for the payment of debts and other claims against the decedent's estate . . . ." Thus, G.S. 28A-23-3(b) ensures that the personal representative's commission on such a sale is limited to the amount that was actually needed for the payment of claims. This discourages personal representatives from selling land merely to increase their commissions.

In the present case, respondent was required to sell the property under the terms of the will; thus the policy of G.S. 28A-23-3(b) is not involved. The property was not sold "to pay debts or legacies"; hence, subsection (b) does not apply, and the proceeds would be included in commissionable receipts under subsection (a) of G.S. 28A-23-3. Accordingly, the judge did not err in finding that commissions could be paid on the proceeds. We also note that, because the amount of the fee is not at issue, any error in this regard would not be grounds for reversal. Respondent's acceptance of commissions based on an erroneous interpretation of a statute would not be misconduct requiring revocation of Letters Testamentary.

Petitioners next contend that the judge erred in making conclusions of law numbers 4 and 5 in which the judge concluded that the will "mandated" that respondent employ his own law firm and that respondent's actions did not constitute default or misconduct. Petitioners argue that, although the will directed respondent to employ his firm, such employment would only be justified if legal services were required, and such services were not required in this case.

We agree that the will provision alone does not justify the payment of attorney's fees. Such fees are payable only when services rendered are beyond the ordinary routine of administration and a representative who is not an attorney would be reasonably justified in retaining legal counsel. G.S. 28A-23-4. The judge did conclude, however, that respondent and his firm "rendered professional services as attorneys to the estate which were beyond the ordinary routine of estate administration." The gist of petitioners' argument is that respondent and his firm did not provide non-routine services so as to justify the payment of any attorney's fees.

We first note that petitioners' reliance on Lightner v. Boone, 221 N.C. 78, 19 S.E.2d 144 (1942) is misplaced. That case was decided prior to the enactment of G.S. 28A-23-4, at which time an attorney who became an executor was not entitled to extra compensation for legal services rendered to the estate. Lightner v. Boone, 221 N.C. at 86, 19 S.E.2d at 150. Petitioners also mistakenly rely on In re Estate of Longest, supra. In Longest, the revocation of Letters Testamentary was upheld where an executor paid himself fees and commissions without obtaining any approval from the clerk. Longest, 74 N.C. App. at 393-94, 328 S.E.2d at 809. In the present case, the clerk testified that she approved the fees after conferring with respondent as to the amount of work involved in the administration of the estate. The clerk also testified that respondent did not request a dollar amount and that she advised him she would allow ten percent — five for commissions and five for legal fees. By approving a percentage, though not stated as a specific dollar amount, the clerk fixed the fee as required in Longest.

The steps in the settlement of an estate are described in G. Stephenson and N. Wiggins, Estates and Trusts Ch. 15, at 219 (5th ed. 1973), and include:

(1) procedure prior to appointment of administrator or executor; (2) appointment of administrator or executor; (3) assembling property belonging to estate; (4) safekeeping or safeguarding that property; (5) interim management of that property; (6) assembling, passing upon, and paying debts, taxes, and expenses of settlement of estate; (7) accounting for settlement of estate; and (8) distributing net estate.

The need for legal services in executing one or more of these steps will vary from estate to estate depending upon the circumstances of each case. The nature of the assets, the number, age and location of heirs and beneficiaries, the care with which the decedent attended to his business affairs, and myriad other factors may affect whether legal services would be required by a nonattorney personal representative to complete administration of an estate. Likewise, the nature and extent of legal services required must be determined on a case-by-case basis. While certain lawyer services such as handling litigation, drawing legal documents, and rendering legal opinions based on legal research clearly are beyond the ambit of routine administration, other services such as preparing the ninety-day inventory, annual account, and final account are routine administration even when performed by a lawyer. Between these two extremes, there may be some services rendered by a lawyer personal representative which, in the context of a particular estate, constitute legitimate legal services beyond routine administration even though these tasks might be undertaken by a nonlawyer personal representative; for example: lease negotiations, conferences with Internal Revenue Service Agents, or negotiations to sell real or personal property. In this last category, the personal representative may not be required to have legal assistance, but prudence may dictate that to retain legal counsel would be reasonably justified. We shall not attempt to define all services which justify the payment of attorney's fees under G.S. 28A-23-4. The legislature undoubtedly took these varying circumstances into consideration when it vested the clerk of superior court with responsibility for evaluating the evidence produced by the attorney/executor and applying the prescribed two-pronged test to determine legal fees. G.S. 28A-23-3(a); G.S. 28A-23-4.

A petition to revoke Letters Testamentary is addressed to the discretion of the clerk, or, in this case, the judge. See Jones v. Palmer, 215 N.C. 696, 25 S.E.2d 850 (1939). The denial of the petition, though reviewable, will not be reversed unless clear and compelling grounds for revocation are shown. Id. at 699, 25 S.E.2d at 852. On the record before us, there is evidence that some services were provided by respondent and his firm which justify the payment of fees under G.S. 28A-23-4. There is also evidence that the clerk approved the fee. The clerk's approval of the fee is strong evidence that respondent's payment of the fee was not a breach of his duty. Whether the clerk applied the standard set forth in G.S. 28A-23-4 improperly and acted erroneously in approving a fee of five percent, as opposed to any fee, is not at issue in this proceeding as that question goes to the amount or reasonableness of the fee rather than to respondent's alleged misconduct. We do note, however, that the better procedure is for the attorney personal representative to submit his request for legal fees in writing supported by a statement detailing the specific legal services rendered and for the clerk to issue the order in writing stating the specific dollar amount approved.

Petitioners next assign error to the court's conclusion of law "that the payment of commissions of $89,000.00 being less than 10 percent of the receipts and expenditures of the estate of Annie Mae S. Davis, it is not necessary in this proceeding to make a determination as to the reasonableness of said fee." Petitioners contend that this conclusion was "offered gratuitously by the court"; that it was made upon erroneous findings of fact premised on inadmissible parol testimony by the clerk of court; and that the conclusion is contrary to law. While we agree that the conclusion of law was superfluous in view of the parties' stipulation, we perceive no prejudicial error resulting from its inclusion. The key words are "in this proceeding." Read in light of the stipulation that the reasonableness or amount of the legal fee was not at issue and finding of fact number 20, that the clerk had told respondent she would allow commissions in the amount of ten percent of receipts and disbursements with five percent being attributable to executor's commission and five percent attributable to legal fees, the conclusion of law merely confirms that the amount paid was within the amount approved by the clerk, the reasonableness of which was not for consideration in this proceeding. We have already addressed petitioners' argument concerning parol evidence.

Petitioners next argue that the clerk erred in basing the amount of attorney's fees on the size of the estate. The clerk testified that she allowed a fee of five percent of receipts and expenditures. The actual payment was slightly less than that amount. We agree with petitioners that fees awarded under G.S. 28A-23-4 should be for actual services rendered and should not be based solely upon the size of the estate. Nevertheless, the size of the estate provides a useful guideline and may be considered as a factor in determining whether legal services were necessary and the time expended justified.

Petitioners' reliance on In re Moore, 292 N.C. 58, 231 S.E.2d 849 (1977), to support this argument is again misplaced. In Moore, the legal fee being challenged was not for legal services rendered in administrating the estate, but rather for services to the person named as executor in the will in defending a challenge to his qualifying as personal representative. Our Supreme Court stated that, in that context, for the trial judge to consider the size and complexity of the estate was improper and the Court directed that the legal fee be based on services rendered. The legal services rendered in Moore had no relationship to the size and complexity of the estate. Because the amount of the fee is not being reviewed on this appeal, we find no reversible error in the award of a fee based on a percentage of the estate.

Petitioners finally assign error to the signing and entry of the order as being contrary to law. This argument is premised on the theory that respondent obtained no approval for payment of legal fees and that this case is controlled by In re Estate of Longest, 74 N.C. App. 386, 328 S.E.2d 804. Longest is distinguishable, however, for the reason that in Longest the clerk sent the executor repeated notices to file a petition for approval of the fees he was drawing from the estate. The executor ignored these notices but continued to pay himself fees. The line of cases interpreting G.S. 28A-9-1 is clear that the clerk must remove a personal representative when the clerk finds "the omission of duty is sufficiently grave to materially injure or endanger the estate, or if compliance with the orders of the court in the supervision and correction of the administration are not promptly obeyed." Jones v. Palmer, 215 N.C. at 699, 25 S.E.2d at 852. The clerk in this case testified she approved commissions equal to ten percent — five percent for attorney's fees. The credibility of the testimony is for the trier of fact to decide. Knutton v. Cofield, 273 N.C. 355, 359, 160 S.E.2d 29, 33 (1968).

Based on the foregoing, we affirm the judge's order denying the petition to revoke respondent's Letters Testamentary. In so doing, we emphasize that we are not expressing approval of the manner in which either respondent or the clerk handled the legal fee in this estate. Our decision is limited solely to the issue of the revocation of respondent's Letters Testamentary. Neither our decision nor the order of the judge below will preclude petitioners from challenging the amount of the fee or seeking damages in a separate proceeding. See Shelton v. Fairley, 72 N.C. App. 1, 6-7, 323 S.E.2d 410, 415 (1984), disc. rev. denied, 313 N.C. 509, 329 S.E.2d 394 (1985).

Affirmed.

Judge WELLS concurs and files a concurring opinion.

Judge ORR dissents.