UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

R. SPENCER OLIVER; JEANIE A.

OLIVER,

Plaintiffs-Appellants,

v.

GARRY M. OLIVER, individually and

No. 98-1460

in his capacity as Executor of the

Estate of Robert C. Oliver,

deceased; R. TEEL OLIVER; BRUCE L.

OLIVER; INTERCON, INCORPORATED, a

Corporation,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Elizabeth City.

Terrence W. Boyle, Chief District Judge.

(CA-97-52-2-BO)

Submitted: February 26, 1999

Decided: May 17, 1999

Before NIEMEYER, HAMILTON, and WILLIAMS,

Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Norman W. Shearin, Jr., Christopher Ambrosio, VANDEVENTER

BLACK, L.L.P., Kitty Hawk, North Carolina, for Appellants. Ashley
Lee Hogewood, III, Sara Wyche Higgins, KENNEDY, COVINGTON, LOBDELL & HICKMAN, L.L.P., Raleigh, North Carolina, for

Appellees.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Spencer and Jeanie Oliver appeal the district court's order dismissing their civil complaint for lack of subject matter jurisdiction. Finding no reversible error, we affirm.

This case involves a rather contentious intra-family dispute over

the administration of an estate. In June 1995, Robert Oliver ("Mr. Oliver") died testate, leaving all of his real and personal property to his

children, Garry, Teel, Bruce, and Spencer Oliver. 1 This property consisted primarily of a corporation in which Mr. Oliver was the principal shareholder and director ("Intercon"), a promissory note from

Intercon in the amount of $200,000, and a home on the beach. Mr.

Oliver bequeathed his interest in Intercon and the promissory note to

Garry Oliver and the home to Teel, Bruce, and Spencer Oliver.

Tensions between the brothers began almost immediately. Mr. Oliver's will named Garry Oliver as executor of the estate. Spencer and

Jeanie Oliver allege that Garry Oliver has not properly settled the

estate. Specifically, they contend that the promissory note is in arrears

because Intercon did not make any payments to Mr. Oliver while he

was alive or to the estate after his death. They further allege that Intercon owed Mr. Oliver at least two years' worth of unpaid salary. The

house was also the subject of controversy. Since the brothers could

not agree on how best to use the property, Bruce Oliver initiated a

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1 Jeanie Oliver is Spencer Oliver's wife.

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partition action, and the house was sold.2 However, Mr. Oliver had

obtained a bank loan for $125,000, using the house as security.3 Evidence was presented at trial showing that the plan was for the note to

be paid from the proceeds of the sale. Spencer and Jeanie Oliver contend that this plan would reduce their share of the proceeds from the

sale and that the note should be paid by the estate.

Approximately one week before a scheduled state court hearing to

close the estate, Spencer and Jeanie Oliver filed the instant complaint

in federal district court seeking a declaratory judgment describing the

rights, duties, and obligations of the parties under the will, a codicil,

and the Intercon note; directing Garry Oliver, as executor, to abstain

from making certain decisions or taking certain actions in the administration of the estate and to provide specific information concerning

the estate; deciding certain questions concerning the administration of

the estate and directing Garry Oliver, as executor, to take specific

actions in accordance with the court's decisions; and determining the

apportionment of federal taxes, interest, and state penalties. The district court dismissed the complaint pursuant to the"probate exception" to federal diversity jurisdiction.

We find that the district court properly dismissed the complaint. It

is well settled that federal courts have no jurisdiction over matters

exclusively within the jurisdiction of state probate courts. See Turja

v. Turja, 118 F.3d 1006, 1009 (4th Cir. 1997) (citation omitted). In

the present case, North Carolina law grants the clerk of the superior

court exclusive jurisdiction over the probate of wills and administration of estates. See N.C. Gen. Stat. §§ 7A-241, 28A-2-1 (1997). We

find that the district court correctly concluded that all of the claims

raised by Spencer and Jeanie Oliver could have been decided by the

clerk at the scheduled hearing to close the estate. We further find that

the relief requested would impermissibly require the district court to

administer the estate. See Markham v. Allen, 326 U.S. 490, 494

(1946) (federal courts may not interfere with probate proceedings or

assume general jurisdiction over probate matters); Foster v. Carlin,

200 F.2d 943, 947 (4th Cir. 1952) (same). Finally, we find that Spen-

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2 Teel Oliver ultimately purchased the home.

3 Jeanie Oliver eventually purchased the bank note on the home.

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cer and Jeanie Oliver's reliance on N.C. Gen. Stat.§ 1-255 (1997) is

misplaced. The district court properly found that this section is merely

a state procedural rule which would allow them to bring an action for

declaratory judgment in superior court, and state procedural rules are

not binding on federal courts. See Erie R.R. v. Tomkins, 304 U.S. 64

(1938).

Accordingly, we affirm the district court's order. We dispense with

oral argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

AFFIRMED

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