37 S.E. 518 | N.C. | 1900
Lead Opinion
By the will of Tobias Kessler, one Woodson was appointed trustee, and certain real and personal property was devised to be held by him in trust to be kept invested, and the income paid to A. I; Y. Newsome, a married woman, during her life, and at her de'ath the principal to be paid over to her issue; and certain other property was to be held by him on similar trusts for other beneficiaries named in the will. Woodson refused to accept the trust, and this proceeding was begun before the Olerk December 1, 1891, for the appointment of a substituted trustee. The nature of the trust is not of the hind which, being based upon confidence in the personal discretion vested in the trustee, fails upon the death or refusal of the trustee. The mere absence of directions in the will as to the nature of the investment does not
They contend, first, that the Clerk had no jurisdiction of the proceeding to appoint a new trustee, except when the original trustee had been named in a deed (Code, sec. 1276), and therefore the judgment taken in the Superior Court May, 1898, though not appealed from, and the judgment at August Term, 1899, though entered by consent, are void. The Superior Court undoubtedly had authority, under its general equity jurisdiction, to appoint a new trustee to prevent the failure of the trust, if the proceeding had begun by
It is also contended that the judgment is irregular because the husband of A. I. V. Newsome was not a formal party to
It is further objected that the husband of Dora S. Goodman should have been made a party, but she was at the time an infant, without- general guardian, and appeared by her duly appointed guardian ad litem, as required by Code, sec. 181, and is estopped by the judgment.
The last objection is as to service of summons upon the children of Mrs'. Newsome under fourteen years of age. Summons was served by delivering a copy to each of them personally, as prescribed by Code, sec. 217(2). A guardian ad litem was regularly appointed. Summons was served upon him, and he filed answer. The statutory requirement has been sufficiently complied with. The objection that a copy of the summons was not also left with the “father, mother, or guardian” is a refinement, and can not invalidate the judgment when a guardian ad litem has been duly appointed, and has filed answer, and there is no suggestion of ’fraud most especially when (as in this instance) the mother
Affirmed.
Dissenting Opinion
(dissenting). Tobias Kessler, of Rowan County, died, leaving a last will and testament, one clause of which reads as follows: “Item 15. The balance and residue of my estate of every hind I give, bequeath, and devise, to my daughter, Ingold Newsome, wife of A. II. Newsome, during her lifetime; said estate to be placed in the hands of my trastee, hereafter named and appointed, for the use and 'purposes as follows, to-wit, said trustee is to invest and keep invested said estate, and the interest and income accruing therefrom is to be by him paid to my said daughter, Ingold Newsome, for and during her natural life, and at her death said estate to be paid over by said trustee to her issue: Provided, hoivever, that my said trustee shall not be chargeable with interest on any money or personal estate lying idle in his hands.” II. N. Woodson, the trustee appointed in the will, declined the trust. The plaintiffs, who are also beneficiaries under another clause of the will, and whose interests were also placed under the management and control of Woodson, commenced a proceeding before the Clerk of the Superior Court of Rowan County against certain other of the beneficiaries in the will, including Mrs. Newsome and her children, to have a trustee appointed in the place of Woodson. Mrs. Newsome was a married woman, as was also her daughter, Dora S., the wife of Ed. Goodman, and the husbands of neither have ever been made parties. .The Clerk dismissed the proceeding for want of jurisdiction. An appeal by the plaintiffs carried the case to the Superior Court. At May Term, 1898, and August Term, 1899, of the Supe
The husbands of the two married women defendants were not made parties to the proceeding, and for that reason the judgment should have been set aside. But it is said that Mrs. Newsome was a free trader. There was no sufficient evidence on that point upon which his Honor could have found that fact. In fact, there was no evidence in the case, that Mrs. Newsome was a free trader. Only a statement to that effect appeared in the answer of Foil and his wife. In' my opinion, the only evidence competent to prove that a married woman is a free trader, is the writing" itself, with its registration indorsed thereon, or a copy of such writing duly proved and registered, and certified by the register of the county in which the same is recorded.
Lead Opinion
MONTGOMERY, J., dissenting. By the will of Tobias Kessler, one Woodson was appointed trustee, and certain real and personal property was devised to be held by him in trust to be kept invested, and the income paid to A. I. V. Newsome, a married woman, during her life, and at her death the principal to be paid over to her *338 issue; and certain other property was to be held by him on similar trusts for other beneficiaries named in the will. Woodson refused to accept the trust, and this proceeding was begun before the Clerk 1 December, 1897, for the appointment of a substituted trustee. The nature of the trust is not of the kind which being based upon confidence in the personal discretion vested in the trustee, fails upon the death or refusal of the trustee. The mere absence of directions in the will as to the nature of the investment does not make the trust a discretionary (496) one in the sense that the courts can not appoint a new trustee. The Clerk dismissed the proceedings, on the ground of want of jurisdiction, and an appeal was taken to the Superior Court, and by consent of plaintiffs and defendants, was heard before McIver, J., at May Term, 1898, of Rowan. At that hearing the only contention besides the objection to jurisdiction was whether there should be only one trustee or two or three, and who should be appointed. The answer filed by A. I. V. Newsome consented to the appointment of a substituted trustee, but asked for a separate trustee for her interest in the property. The Judge sustained the jurisdiction, and appointed only one trustee (Coghenour) in the stead of Woodson, to discharge all the trusts declared in the will. The new trustee gave bond in the sum of $75,000. From this judgment no appeal was taken. At August Term, 1899, a further decree was made in the cause by consent expressed in the face of the judgment, said A. I. V. Newsome being represented by her counsel, Theo. F. Kluttz, Esq., containing instructions to said Coghenour as to the management of his trust, allowance of commissions, and filing his annual account. At February Term, 1900, a motion was made, upon notice, to set aside the judgments at May Term, 1898, and Fall Term, 1899. This being refused, the movers appealed.
They contend, first, that the Clerk had no jurisdiction of the proceeding to appoint a new trustee, except when the original trustee had been named in a deed (Code, Sec. 1276), and therefore the judgment taken in the Superior Court May, 1898, though not appealed from, and the judgment at August Term, 1899, though entered by consent, are void. The Superior Court undoubtedly had authority, under its general equity jurisdiction, to appoint a new trustee to prevent the failure of the trust, if the proceeding had begun by writ returnable to the Superior Court, and even if no writ whatever had been (497) served, if the parties in interest appeared generally; and that is the case, in effect, here, since no appeal was taken. Even if an appeal had been taken from such judgments, *339
it would be an anomaly if a party sued before the Clerk, who is a part of the Superior Court, could, on appeal to the Judge, have the action dismissed, and thus require the plaintiffs to come right back into the identical court from which they have been dismissed, and in which the cause was originally brought before the Clerk of the Court. To prevent such useless countermarching, the General Assembly, by Chap. 276, Laws 1887 (incorporated in sec. 255, Clark's Code [3 Ed.]), provides: "Whenever any civil action or special proceeding begun before the Clerk of any Superior Court shall be, for any ground whatever, sent to the Superior Court before the Judge, the said Judge shall have jurisdiction," and requires the Judge to proceed to hear and determine all matters in controversy in such action, unless he shall deem it in the interest of justice to send the case back for further action before the Clerk. This section has been repeatedly sustained. Faison v. Williams,
It is also contended that the judgment is irregular because the husband of A. I. V. Newsome was not a formal party to the action. But it appears upon its face that the judgment was by consent as to her. It is averred, and not (498) denied, that she is a free trader, and the judgment fastens no personal liability upon her. Hence McLeod v. Williams,
It is further objected that the husband of Dora S. Goodman *340 should have been made a party, but she was at the time an infant, without general guardian, and appeared by her duly appointed guardian ad litem, as required by Code, sec. 181, and is estopped by the judgment.
The last objection is as to service of summons upon the children of Mrs. Newsome under fourteen years of age. Summons was served by delivering a copy to each of them personally, as prescribed by Code, sec. 217 (2). A guardian ad litem was regularly appointed. Summons was served upon him, and he filed answer. The statutory requirement has been sufficiently complied with. The objection that copy of the summons was not also left with the "father, mother, or guardian" is a refinement, and can not invalidate the judgment when a guardianad litem has been duly appointed, and has filed answer, and there is no suggestion of fraud most especially when (as in this instance) the mother is a party to the action, has filed her answer consenting to the only relief asked, the (499) appointment of a substituted trustee, and has filed a consent judgment.
Affirmed.