Bank of Wadesboro v. Jordan

114 S.E.2d 82 (1960)

252 N.C. 419

BANK OF WADESBORO, Administrator of Estate of William Daniel Teal, Jr. v. Olivette Teal JORDAN; Wayne Teal; Cora Barnes and husband, Lexie Barnes; and all unknown heirs or next of kin of William Daniel Teal, Jr., and B. T. Hill, Guardian Ad Litem of Cora Barnes and all unknown heirs and next of kin of William Daniel Teal, Jr.

No. 464.

Supreme Court of North Carolina.

April 27, 1960.

*84 Taylor, Kitchin & Taylor, Wadesboro, for petitioner, appellant.

B. T. Hill, Wadesboro, Guardian Ad Litem of Cora Barnes and all unknown heirs and next of kin of William Daniel Teal, Jr., appellant.

T. L. Caudle, Wadesboro, T. L. Caudle, Jr., for respondent, Olivette Teal Jordan, appellee.

Arthur Vann, Claude V. Jones, Durham, for respondent, Wayne Teal, appellee.

HIGGINS, Justice.

Many thousands of dollars are involved in this proceeding. While this fact does not change applicable principles of law, nevertheless it does increase the likelihood that the surviving blood kin of *85 William Daniel Teal, Jr., may eventually present themselves and claim as successors to his interest. This proceeding should not be concluded until they are legally before the court. Presented, therefore, is the question whether publication of the notice to Cora Barnes and husband, Lexie Barnes, and all unknown heirs and next of kin of William Daniel Teal, Jr., (formerly Joseph Laster Barnes) was legally sufficient to bring them before the court. In holding the notice sufficient, the clerk had before him the evidence upon which his finding of fact No. 3 is based. With information and notice that Beulah Land Barnes, Mary Ann Barnes, Lexie London Barnes, Jr., Cora Barnes, and Mrs. M. R. Gill are next of kin by blood (and assuming service by publication is proper) yet the notice should be directed to them as named individuals. Notice merely to known and unknown heirs is insufficient if more definite identification is available. The guardian ad litem does not purport to answer for these named individuals. Service by publication is in derogation of the common law and strict compliance is required. Board of Commissioners of Roxboro v. Bumpass, 233 N. C. 190, 63 S.E.2d 144. "It is the universal holding that unless one named as a defendant has been brought into court in some way sanctioned by law, or makes a voluntary appearance, * * * a judgment rendered against him is void for want of jurisdiction." Jones v. Jones, 243 N.C. 557, 91 S.E.2d 562, 567.

The purpose of giving notice by publication is not only to alert the individuals named, but also their friends and acquaintances who may see the publication and give them actual notice. The court proceeded by holding that Ch. 813, Session Laws of 1955, deprived the blood kin of all right to share in an adopted person's estate; therefore, having no interest, notice was not required. However, before the court decides this question, the known persons who may claim an interest must be given such notice and opportunity to be heard as the facts permit and the law requires.

The guardian ad litem asserts in his answer the blood kin are the lawful heirs and distributees. The order of adoption entered in 1928 contains a qualification that the adoption is without right of inheritance. The effect of this provision is not now before us. Its effect should not be decided until all interested parties are before the court. Bennett v. Cain, 248 N.C. 428, 103 S.E.2d 510. "No matter how laudable the purpose of the parties to this action, no judicial declaration should be made which could have no binding effect, but which might seriously cloud and interfere with such rights as the Odums may have." Britt v. Baptist Children's Homes, 249 N.C. 409, 106 S.E.2d 474, 475. "Whenever, as here, a fatal defect of parties is disclosed, the Court should refuse to deal with the merits of the case until the absent parties are brought into the action, and in the absence of a proper motion by a competent person, the defect should be corrected by ex mero motu ruling of the Court." Town of Morganton v. Hutton & Bourbonnais Co., 247 N.C. 666, 101 S.E.2d 679, 682. "Absent heirs are not bound by the judgment in a cause to which they are not parties. Our procedure requires that they be brought in and given an opportunity to be heard." Oxendine v. Lewis, 251 N.C. 702, 111 S.E.2d 870, 871. "All persons having an interest in the controversy must be parties, to the end that they may be concluded by the judgment, and the controversy be finally adjudicated as in the case of an action instituted in the usual way." Peel v. Moore, 244 N.C. 512, 94 S.E.2d 491, 494.

Next of kin have a right to be heard before the court decrees they are precluded from sharing in the estate of their next of kin who dies intestate. We go no further than to say that they have the right to be heard and are entitled to such notice of the hearing as the law provides. This may be by proper publication in the event *86 personal service cannot be had. Ferguson v. Price, 206 N.C. 37, 173 S.E. 1.

For the reasons assigned, the case is remanded to the Superior Court of Anson County for the service of notice of this proceeding on those whose names are known.

Remanded for additional parties.