Young v. Young
| Decision Date | 31 October 1884 |
| Citation | 91 N.C. 359 |
| Court | North Carolina Supreme Court |
| Parties | JANE E. YOUNG v. JAMES R. YOUNG and others. |
CIVIL ACTION tried at Spring Term, 1884, of GRANVILLE Superior Court, before McKoy, J.
On October 30th, 1866, Russell H. Kingsbury and wife by deed for the recited consideration of twenty-five hundred dollars, paid by Peter W. Young, conveyed to the latter in fee a certain lot of land in the town of Oxford, to be held upon the following uses and trusts as therein declared, to-wit:
For the sole, separate and exclusive use and benefit of Jane Eliza Young, wife of said Peter W. Young, for and during the term of her life, and at her death for the use of her children then living and the then living issue of such of the children as shall have died leaving issue, as sharers in fee simple per stirpes. And it is further agreed between the said Russell H. Kingsbury, trustee, &c., (he acting in that capacity in the execution of his deed) and the said Peter W. Young, that at any time that it may seem to him to be to the interest of the said cestuis que trust he may sell the said land and premises absolutely, provided that without delay he shall re-invest the proceeds of such sale in real estate or personal estate at his discretion, or otherwise manage, apply and dispose of the said proceeds for the benefit of the said cestuis que trust, for the sole and separate benefit of the said Jane Eliza Young and her children in the same manner as the lands and premises in the deed are conveyed and settled.
The trustee, Peter W. Young, has since died, not having exercised the power conferred in said deed, and the plaintiff, his surviving wife, brings this action against the defendants, three of whom are her children, and seven grandchildren, issue of marriages of a son and daughter, the wife and husband of whom are also parties to the suit, for the purpose of having a new trustee appointed, to be clothed with the same discretionary power as his predecessor, and in order that by him or by a decree of the court the land may be sold and a good title assured to the purchasers.
The complaint states that the daughter Harriet A., is an infant, and has a regular guardian, while the seven grandchildren are all under age and have no guardian.
The complaint was filed without the previous issue of a summons, at spring term, 1884, of the superior court of Granville, where the following order was entered:
“On motion in this cause it is ordered that the defendant James R. Young be appointed guardian ad litem for and on behalf of the defendants Peter W. Young, Charlotte A. Young, Jane E. Young and Mary B. Young, infant children of said James R. Young.”
“And that the defendant Nathaniel B. Cannady be appointed guardian ad litem for and on behalf of the infant defendants Jane C. Cannady, Annie Y. Cannady and Florence G. Cannady,...
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...shown, and it was further established that the purchasers, who were defendants, had notice of the plaintiff's equitable rights. In Young v. Young, 91 N.C. 359, there was no attempt attack a prior proceeding; but the court in the original cause refused to construe the deed in question and to......