§ 7A-104. Disqualification; waiver; removal; when judge acts. - North Carolina Statutes

§ 7A‑104. Disqualification; waiver; removal; when judge acts.

(a)        The clerk shall not exercise any judicial powers in relationto any estate, proceeding, or civil action:

(1)        If he has, or claims to have, an interest by distribution,by will, or as creditor or otherwise;

(2)        If he is so related to any person having or claiming such aninterest that he would, by reason of such relationship, be disqualified as ajuror, but the disqualification on this ground ceases unless the objection ismade at the first hearing of the matter before him;

(3)        If clerk or the clerk's spouse is a party or a subscribingwitness to any deed of conveyance, testamentary paper or nuncupative will, butthis disqualification ceases when such deed, testamentary paper, or will hasbeen finally admitted to probate by another clerk, or before the judge of thesuperior court;

(4)        If clerk or the clerk's spouse is named as executor ortrustee in any testamentary or other paper, but this disqualification ceaseswhen the will or other paper is finally admitted to probate by another clerk,or before the judge of the superior court. The clerk may renounce theexecutorship and endorse the renunciation on the will or on some paper attachedthereto, before it is propounded for probate, in which case the renunciationmust be recorded with the will if it is admitted to probate.

(a1)      The clerk may disqualify himself in a proceeding incircumstances justifying disqualification or recusement by a judge.

(a2)      The parties may waive the disqualification specified in thissection, and upon the filing of such written waiver, the clerk shall act as inother cases.

(b)        When any of the disqualifications specified in this sectionexist, and there is no waiver thereof, or when there is no renunciation undersubdivision (a)(4) of this section, any party in interest may apply to asuperior court judge who has jurisdiction pursuant to G.S. 7A‑47.1 orG.S. 7A‑48 in that county, for an order to remove the proceedings to theclerk of superior court of an adjoining county in the district or set ofdistricts; or he may apply to the judge to make either in vacation or during asession of court all necessary orders and judgments in any proceeding in whichthe clerk is disqualified, and the judge in such cases is hereby authorized tomake any and all necessary orders and judgments as if he had the same originaljurisdiction as the clerk over such proceedings.

(c)        In any case in which the clerk of the superior court isexecutor, administrator, collector, or guardian of an estate at the time of hiselection or appointment to office, in order to enable him to settle suchestate, a superior court judge who has jurisdiction pursuant to G.S. 7A‑47.1or G.S. 7A‑48 in that county may make such orders as may be necessary inthe settlement of the estate; and he may audit the accounts or appoint acommissioner to audit the accounts of such executor or administrator, andreport to him for his approval, and when the accounts are so approved, thejudge shall order the proper records to be made by the clerk. (C.C.P., ss. 419‑421; 1871‑72, cc. 196,197; Code, ss. 104‑107; Rev., ss. 902‑905; 1913, c. 70, s. 1; C.S.,ss. 939‑942; 1935, c. 110, s. 1; 1971, c. 363, s. 4; 1977, c. 546; 1987(Reg. Sess., 1988), c. 1037, s. 15; 1989, c. 493, s. 1.)