Costner v. Lutheran Children's Home of the South

72 S.E.2d 866 (1952)

236 N.C. 361

COSTNER et al. v. LUTHERAN CHILDREN'S HOME OF THE SOUTH et al.

No. 309.

Supreme Court of North Carolina.

October 29, 1952.

Marvin T. Leatherman, A. L. Quickel, of Lincolnton, and William B. Webb, Charlotte, for plaintiff appellants.

Hartsell & Hartsell, Concord, R. S. Kime, Salem, Va., and Jonas & Jonas, Lincolnton, for defendant appellees.

BARNHILL, Justice.

James Ray Costner, Jr., and Sallie Ann Costner are infants and are necessary parties to this action. Their names appear in the caption as plaintiffs and the judgment recites that they are duly represented by their next friend, Lewis B. Carpenter. It is likewise so stipulated by counsel. Yet the record fails to disclose the appointment of a next friend. Although these infants are listed as plaintiffs, Lewis B. Carpenter filed an answer in their behalf as guardian ad litem, but they are not defendants and there has been no appointment of a guardian ad litem. Latta v. Trustees of General Assembly of Presbyterian Church in U. S., 213 N.C. 462, 196 S.E. 862; Wachovia Bank & Trust Co. v. Deal, 227 N.C. 691, 44 S.E.2d 73.

*867 If the remainder estates vested at the time of the death of the testator, as the court below concluded, J. Ray Costner was one of the remaindermen and his widow, Bryte Royster Costner, as one of his distributees, has an interest in the personal estate involved in this controversy. She is therefore a necessary party. Likewise, the widow of J. E. Cansler, brother of the testator, has an interest in the estate. There is no order in the record making either a party to this action. However, as the widow of J. E. Cansler appeared and answered, the defect as to her may have become immaterial.

Furthemore, it is alleged that one Betty Coon, executrix of the last will and testament of Lucy B. Cansler, widow of the testator, took possession of all the chattels devised by the testator to her testatrix and has, since the death of her testatrix, collected all the rents and profits from the real estate and the dividends on the stocks which formed a part of the estate of Thomas H. Cansler and which was devised and bequeathed to his widow for and during her natural life. Since the plaintiffs seek to have her account therefor, she is likewise a necessary party. It is true it is alleged that she is ready and willing to account for the same as the court may direct. But this does not meet the requirements of the law, for she will not be bound by any judgment in this action in the present state of the record.

The title to real property, as well as chattels and choses in action, is at issue. Infants, who apparently are not properly represented and who would not be precluded by any judgment entered, have an interest in the subject matter of the controversy. A full and final determination of the questions presented for decision cannot be had until and unless all interested parties are brought in and given an opportunity to be heard.

In view of the condition of the record as we interpret it, we deem it advisable to vacate the judgment entered and remand the cause for further proceedings accordant with this opinion. It must not be assumed, however, that this disposition of the appeal gives any indication that we approve or disapprove the conclusions of law made by the court below. We reserve decision on the legal questions posed for future consideration after the action is properly constituted.

We are not inadvertent to the stipulation "that * * * orders whereby additional parties were made and other purely formal parts of the record need not be printed * * *." Even so, the names of the additional parties are not made to appear, and we may not assume that this has reference to any person not named in the caption.

Remanded.

WINBORNE, J., took no part in the consideration or decision of this case.