Cecil v. Pleasant Grove Methodist Protestant Church

174 S.E. 452, 206 N.C. 597, 1934 N.C. LEXIS 255

• Court: Supreme Court of North Carolina
• Decided: May 23, 1934
• Status: Published

Opinion

Pee CuRiam.

J. B. Cecil, by his last will and testament, which was duly probated and recorded in the office of the clerk of the Superior Court of Davidson County on 18 March, 1901, devised and bequeathed certain property, real and personal, to the defendant, Pleasant Grove Methodist Protestant Church. The said will contains the following words: “If any of our kinfolks should come to want through misfortune I want them to have some assistance, but if they come to want by dissipation, none.”

The plaintiff is a nephew of the testator. He alleges in his complaint that through misfortune and not because of dissipation, he is now in need of financial assistance, and prays judgment that defendants be ordered by the court to provide such assistance for him out of the income of the property devised and bequeathed by the testator and now in the possession of the defendants. It is not alleged in the complaint that plaintiff before the commencement of this action, applied to the defendants for assistance and that defendants arbitrarily refused the same. In the absence of such application and refusal, the plaintiff cannot maintain this action. See Carter v. Young, 193 N. C., 678, 137 S. E., 875. The judgment is

Affirmed.