dissenting.
This is a proceeding pursuant to N.C. Gen. Stat. § 28A-9-1 to have respondent Anderson removed as administrator of the estate of Peggy Fairley Anderson. On 11 December 1997, petitioner McRae filed a motion to revoke the letters of administration issued to Anderson and to request the appointment of a suitable successor administrator.
The clerk of superior court issued an order to respondent Anderson to show cause why his letters of administration should not be revoked. Anderson filed a response on 10 March 1998 challenging McRae’s petition on the grounds of standing, estoppel, laches, and the statute of limitations. By order of the clerk filed 7 September 1999, the matter was transferred to the civil issue docket of superior court for trial of the factual issues pursuant to N.C. Gen. Stat. § 1-174 and § l-273(a) (repealed and replaced by N.C. Gen. Stat. § 1-301.1 to § 1-301.3, effective 1 Jan. 2000).
On 13 September 2000, respondent Anderson filed a motion for summary judgment, claiming there were no genuine issues of material fact and that he was entitled to judgment as a matter of law. The trial court granted respondent’s motion for summary judgment by order entered 4 October 2000, and dismissed McRae’s petition to revoke Anderson’s letters of administration. The majority opinion concludes that the trial court erred in granting summary judgment to Anderson because there were genuine issues of material fact as to the issue of McRae’s standing to bring the petition, and Anderson lacked proper standing to raise the issue of estoppel. Accordingly, the majority opinion remands the matter to superior court for trial on the merits of the issue of standing, and directs entry of summary judgment in favor of McRae on the issue of estoppel.
I respectfully dissent from the majority opinion for I conclude that the trial court did not have subject matter jurisdiction to enter summary judgment on the merits of McRae’s petition to revoke Anderson’s letters of administration. Therefore, I would vacate the trial court’s summary judgment order and remand this matter to superior court for a jury trial on the factual issues presented by McRae’s petition.2 When these factual issues have been determined by the *508jury, the matter is to be remanded to the clerk of superior court for determination of the legal question presented — whether Anderson’s letters of administration should be revoked. The clerk’s decision on this issue is then subject to appeal to superior court pursuant to N.C. Gen. Stat. § 28A-9-4.
The clerk of superior court has express authority under N.C.G.S. § 28A-9-1 (formerly N.C.G.S. § 28-32) “to revoke letters of administration which were improperly issued and to remove any administrator who has been guilty of default or misconduct in the execution of his office.” In re Estate of Lowther, 271 N.C. 345, 347, 156 S.E.2d 693, 695 (1967). In In re Estate of Lowther, Justice Sharp, writing for the Court, examined the history of the clerk of superior court’s authority as judge of probate, and clearly set forth the proper procedure to be followed in proceedings to revoke letters of administration. Most importantly, Justice Sharp concluded (1) that proceedings to repeal letters of administration must be commenced before the clerk who issued them in the first instance, and (2) that the superior court has no jurisdiction to appoint or remove an administrator. Id. at 354, 156 S.E.2d at 700. “In other words, jurisdiction in probate matters cannot be exercised by the judge of the Superior Court except upon appeal.” Id.
The procedure that Justice Sharp held to be proper in proceedings of this sort was earlier set out by the Supreme Court in Murrill v. Sandlin, 86 N.C. 54 (1882), a proceeding to remove an administrator, in which the Court said:
It is thus incumbent on the probate judge to make the inquiry, and ascertain for himself the facts upon which the legal discretion reposed in him to remove an incompetent or unfaithful officer, is to be exercised. The original authority to act is delegated to him alone, and he may require the whole issue made between the parties, or any specific question of fact, to be tried by a jury, under the supervision of the judge of the superior court. When these have been determined by the jury, the probate judge, with such supplemental findings of fact by himself as may be necessary, proceeds to decide the question of removal, subject to the right of either party to the contest to have the cause reheard upon appeal.
*509Id. at 55. The subsequent repeal of N.C.G.S. § 28-32 and its replacement by N.C.G.S. § 28A-9-1 does not alter the procedure that should be followed in a proceeding to revoke letters of administration.
Applying the principles reaffirmed by Justice Sharp’s opinion in In re Estate of Lowther; the procedure that should have been followed upon the clerk’s transfer of this matter to superior court was to have a jury trial on the factual issues presented by McRae’s petition. The findings of fact determined by the jury should then have been submitted to the clerk for the clerk to make the initial legal determination of whether Anderson’s letters of administration should be revoked. Thus, I would vacate the trial court’s summary judgment order, and remand for proceedings consistent with the Supreme Court’s decision in In re Estate of Lowther.
In addition, I note that the ultimate factual and legal determinations entered in the subsequent proceedings, in this matter would not be res judicata in any other proceeding between the parties which petitioner McRae may be entitled to pursue.3 In re Estate of Lowther, 271 N.C. 345, 156 S.E.2d 693; Jones v. Palmer, 215 N.C. 696, 2 S.E.2d 850 (1939).
. At this stage of a proceeding to revoke letters of administration, the function of the superior court is simply to supervise the jury trial of any issues of fact that are presented by the petition to revoke and have been properly transferred to superior court by the clerk. This role is different from determining whether there are genuine issues of material fact related to the legal question presented by the petition — whether *508the letters of administration at issue should be revoked. The superior court does not have jurisdiction at this point to make such a determination. See In re Estate of Lowther, 271 N.C. 345, 156 S.E.2d 693 (1967).
. Specifically, the two actions which the record indicates McRae has already commenced against Anderson: (1) the partition proceeding in 97 SP 163, and (2) the action for wrongful distribution of proceeds and benefits in 97 CVS 1345.