Cheshire v. First Presbyterian Church Of Raleigh, 451.

• Decision Date: 11 November 1942
• Docket Number: No. 451.,451.
• Citation: 22 S.E.2d 566,222 N.C. 280
• Parties: CHESHIRE. v. FIRST PRESBYTERIAN CHURCH OF RALEIGH et al.
• Court: North Carolina Supreme Court

222 N.C. 280

22 S.E.2d 566

CHESHIRE.

v.FIRST PRESBYTERIAN CHURCH OF RALEIGH et al.

No. 451.

Supreme Court of North Carolina.

Nov. 11, 1942.

Appeal from Superior Court, Wake County; Leo Carr, Judge.

Action by Joseph B. Cheshire, Jr., trustee under the will of Laura F. Cosby, deceased, against the First Presbyterian Church of Raleigh, the Presbyterian Orphans' Home and E. S. Hartshorn, administrator of B. H. Cosby, deceased, to obtain instructions as to the settlement of the trust estate. From an adverse judgment, E. S. Hartshorn, administrator of B. H. Cosby, deceased, appeals.

Affirmed.

Paul F. Smith, of Raleigh, for plaintiff-appellee.

James I. Mason, of Asheville, for defendant-appellant Hartshorn.

DEVIN, Justice.

This case was here at spring term, 1942, and is reported in 221 N.C. 205, 19 S.E.2d 855, 857, where the facts are fully stated. On that appeal all the pleas set up by the defendant were considered, particularly those based upon the fact that the plaintiff had been appointed trustee under the will in a special proceeding before the clerk, rather than by the Superior Court in term and it was decided that, while under the statutes, C.S. § 4023 and C.S. § 2583, the clerk was without power to make the appointment, all the parties now being properly in the Superior Court, the Judge thereof, in the exercise of the equitable jurisdiction of the court, had power to make the appointment nunc pro tunc. We quote from the court's opinion as follows: "Since the appointment of a trustee was a matter for the superior court in term, and since all the parties are now before the court, and the subject matter of the action involves the supervision of a trust estate, the appointment of a trustee, and the closing of the trust, we see no reason why the superior court of Wake County in the exercise of its equitable jurisdiction may not now, nunc pro tunc, validate and give power to the previous appointment of the clerk, and authorize the settlement and closing of the trust in accord with the expressed will of Laura F. Cosby. Roseman v. Roseman, 127 N.C. 494, 37 S.E. 518; Cody v. Hovey, 219 N.C. 369, 14 S.E.2d 30; Perry v. Bassenger, 219 N.C. 838, 15 S.E.2d 365. This would leave open only the matter of accounting between defendant's intestate and the trustee, for which a reference would seem to be proper."

The cause was remanded to the Superior Court for proceeding not inconsistent with the opinion. Thereupon the court below, having all the parties to this action and...