{ "id": 11303297, "name": "JOSEPH B. CHESHIRE, JR., Trustee Under the Will of LAURA F. COSBY, v. FIRST PRESBYTERIAN CHURCH OF RALEIGH; PRESBYTERIAN ORPHANS' HOME, and EDWIN F. HARTSHORN, Administrator of B. H. COSBY", "name_abbreviation": "Cheshire v. First Presbyterian Church of Raleigh", "decision_date": "1941-11-19", "docket_number": "", "first_page": "393", "last_page": "395", "citations": [ { "type": "official", "cite": "220 N.C. 393" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "159 S. E., 427", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "201 N. C., 211", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623975 ], "opinion_index": 0, "case_paths": [ "/nc/201/0211-01" ] }, { "cite": "101 S. E., 545", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "179 N. C., 147", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655277 ], "opinion_index": 0, "case_paths": [ "/nc/179/0147-01" ] }, { "cite": "93 N. C., 164", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272950 ], "opinion_index": 0, "case_paths": [ "/nc/93/0164-01" ] }, { "cite": "129 U. S., 233", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8299286 ], "opinion_index": 0, "case_paths": [ "/us/129/0233-01" ] }, { "cite": "218 N. C., 302", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618091 ], "opinion_index": 0, "case_paths": [ "/nc/218/0302-01" ] } ], "analysis": { "cardinality": 284, "char_count": 4850, "ocr_confidence": 0.459, "pagerank": { "raw": 8.707031510539864e-08, "percentile": 0.4933434343083323 }, "sha256": "47986c8ca0c1ab97572017679a6e7837537642ef1995db0504f73375206bbcb5", "simhash": "1:636b66a2a297ae1d", "word_count": 828 }, "last_updated": "2023-07-14T14:44:04.432821+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JOSEPH B. CHESHIRE, JR., Trustee Under the Will of LAURA F. COSBY, v. FIRST PRESBYTERIAN CHURCH OF RALEIGH; PRESBYTERIAN ORPHANS\u2019 HOME, and EDWIN F. HARTSHORN, Administrator of B. H. COSBY." ], "opinions": [ { "text": "Deviw, J.\nThe plaintiff alleged in his complaint that \u201che is the duly appointed, qualified and acting trustee under the will of Laura E. Cosby, deceased.\u201d A copy of the will, dated 3 March, 1917, was attached. From this it appeared that the testatrix appointed W. N. Jones executor, and that a trust was created for the benefit of B. H. Cosby during his natural life. B. H. Cosby died 14 November, 1940, and defendant Hartshorn is administrator of his estate.\nIt was further alleged that the plaintiff \u201cand his predecessors as trustee, namely, \"William Bailey Jones and W. N. Jones, have filed annual accounts of their transactions as trustee\u201d in the Superior Court and the accounts have been approved; that the trust created by the will terminated upon the death of B. H. Cosby, and the plaintiff as trustee is filing his final account, with prayer that it be settled under orders of the court, and that he be discharged.\nThe demurrer challenges the sufficiency of the proceeding, principally, upon the ground that the plaintiff does not have capacity to sue, and that there is a defect of parties plaintiff. This is based upon the view that it appears from the will, a copy of which is attached to the complaint, that an executor was named, and that if the executor has died, or is incapable of acting, an administrator cum testamento annexo should have been appointed to carry out the provisions of the will, and that no authority appears for the appointment of a trustee.\nBut the complaint alleges that plaintiff is \u201cthe duly appointed, qualified and acting trustee.\u201d The demurrer admits that fact. Adams v. Cleve, 218 N. C., 302, 10 S. E. (2d), 911. The word \u201cduly\u201d has a definite significance, in the language of the law. It means \u201caccording to legal requirements.\u201d Black\u2019s Law Dictionary. It \u201cimplies the existence of every fact essential to perfect regularity of procedure.\u201d 19 C. J., 833. \u201cThe word \u2018duly\u2019 means in a proper way, or regularly, or according to law.\u201d Robertson v. Perkins, 129 U. S., 233.\nNo defect of parties plaintiff or incapacity to sue appears on the face of the complaint. Hence, the objection must be taken by answer. C. S., 517; Lunn v. Shermer, 93 N. C., 164; Allen v. Salley, 179 N. C., 147, 101 S. E., 545; S. v. Gant, 201 N. C., 211, 159 S. E., 427. The demurrer on tbe ground tbat tbe complaint did not state facts sufficient to constitute a cause of action, or tbat tbe court did not have jurisdiction, cannot be sustained.\nSeveral interesting questions were debated on tbe argument and discussed in tbe briefs, but these are not raised by tbe demurrer, and properly should be presented by pleadings wherein all tbe facts may be made to appear, and plenary judgment rendered thereon.\nTbe judgment sustaining tbe demurrer is\nEeversed.", "type": "majority", "author": "Deviw, J." } ], "attorneys": [ "Paul F. Smith for plaintiff, appellant.", "J ames I. Mason for defendant, appellee." ], "corrections": "", "head_matter": "JOSEPH B. CHESHIRE, JR., Trustee Under the Will of LAURA F. COSBY, v. FIRST PRESBYTERIAN CHURCH OF RALEIGH; PRESBYTERIAN ORPHANS\u2019 HOME, and EDWIN F. HARTSHORN, Administrator of B. H. COSBY.\n(Filed 19 November, 1941.)\n1. Pleadings \u00a7 20\u2014\nA demurrer admits tbe facts alleged in the complaint.\n2. Same: Executors and Administrators \u00a7 26 \u2014 When incapacity of plaintiff to sue does not appear from complaint, demurrer on this ground is bad.\nThis action was instituted by a trustee alleging the termination of the trust and praying that his final account be settled under orders of the court and that he be discharged. Plaintiff alleged that he was the duly appointed, qualified and acting trustee under the will. The administrator of one of the beneficiaries named in the will filed demurrer contending that the plaintiff did not have the capacity to sue in that the will appointed an executor and contained no authority for the appointment of a trustee. Held: Since the word \u201cduly\u201d means according to legal requirements, and the demurrer admitted plaintiff\u2019s allegation that he was the duly appointed, qualified and acting trustee, the question of the capacity of the plaintiff to sue cannot be raised by demurrer, no defect or incapacity of plaintiff to sue appearing upon the face of the complaint. C. S., 517.\nAppeal by plaintiff from Bone, J., at June Term, 1941, of Wake.\nReversed.\nThis was an action instituted by plaintiff as trustee under the will of Laura E. Cosby for settlement of the estate. The defendant Hartshorn,, administrator of B. H. Cosby, one of the beneficiaries named in the will, filed demurrer on the ground that the plaintiff did not have legal capacity to sue, and that there was a defect of parties plaintiff. The demurrer also raised the question of jurisdiction, and the sufficiency of the facts alleged to constitute a cause of action. The other defendants, who are ultimate beneficiaries, did not join in the demurrer.\nThe demurrer was sustained, and plaintiff appealed.\nPaul F. Smith for plaintiff, appellant.\nJ ames I. Mason for defendant, appellee." }, "file_name": "0393-01", "first_page_order": 437, "last_page_order": 439 }