#### JOSEPH B. CHESHIRE, JR., Trustee, Under the Will of LAURA F. COSBY, v. FIRST PRESBYTERIAN CHURCH OF RALEIGH, PRESBYTERIAN ORPHANS' HOME, and E. S. HARTSHORN, Administrator of B. H. COSBY.

(Filed 11 November, 1942.)

Appeal and Error § 49a—

Tbe decision of this Court on a previous appeal, between the same parties and upon the same facts then and now presented, constitutes the law of the case and is conclusive on the points so adjudged.

Appeal by defendant Hartshorn, Administrator, from Carr, J., at June Term, 1942, of Waice.

Aflirmed.

Paul F. Smith for plaintiff, appellee.

Jamies I. Mason for defendant Hartshorn, appellant.

Devin, J.

This case was here at Spring Term, 1942, and is reported in 221 N. C., 205, 19 S. E. (2d), 855, where the facts are fully stated. On that appeal all the pleas set up by the defendant were considered, particularly those based upon the fact that the plaintiff had been appointed trustee under the will in a special proceeding before the clerk, rather than by the Superior Court in term, and it was decided that, while under the statutes, C. S., 4023, and C. S., 2583, the clerk was without power to make the appointment, all the parties now being properly in the Superior Court, the judge thereof, in the exercise of the equitable jurisdiction of the court, had power to make the appointment nunc pro tunc. We quote from the Court’s opinion as follows: “Since the appointment of a trustee was a matter for the Superior Court in term, and since all the parties are now before the court, and the subject matter of the action involves the supervision of a trust estate, the appointment of a trustee, and the closing of the trust, we see no reason why the Superior Court of Wake County in the exercise of its equitable jurisdiction may not now, nunc pro tunc, validate and give power to the previous appointment of the clerk and authorize the settlement and closing of the trust in accord with the expressed will of Laura E. Cosby. *281 Roseman v. Roseman, 127 N. C., 494, 37 S. E., 518; Gody v. Hovey, 219 N. C., 369, 14 S. E. (2d), 30; Perry v. Bassenger, 219 N. C., 838, 15 S. E. (2d), 365. Tbis would leave open only tbe matter of accounting between defendant’s intestate and tbe trustee, for wbicb a reference would seem to be proper.”

Tbe cause was remanded to tbe Superior Court for proceeding not inconsistent witb tbe opinion. Thereupon tbe court below, having all tbe parties to tbis action and all those interested in tbe trust before it, proceeded, in tbe exercise of tbe equitable jurisdiction of tbe court, to appoint tbe plaintiff trustee under tbe will, nunc pro tunc, and to validate bis previous appointment by tbe clerk. Tbe defendant’s pleas in bar were overruled, and tbe cause was referred.

Tbe rulings of tbe court below were in accord witb tbe opinion of tbis Court and must be upheld. Tbe decision of tbis Court on tbe previous appeal, upon tbe same facts then and now presented, constituted tbe law of tbe case. Pinnix v. Griffin, 221 N. C., 348; Robinson v. McAlhaney, 216 N. C., 674, 6 S. E. (2d), 517. Tbe decision on tbe former appeal decided tbe questions now presented, and is therefore conclusive on tbe points so adjudged. For tbis reason tbe distinction between tbe case at bar and N. C. R. R. v. Story, 268 U. S., 286, cited by defendant, is apparent.

Judgment affirmed.