First-Citizens Bank & Trust Co. v. Barnes

Supreme Court of North Carolina

First-Citizens Bank & Trust Co. v. Barnes

125 S.E.2d 437, 257 N.C. 274, 1962 N.C. LEXIS 575

CourtSupreme Court of North Carolina

DecidedMay 23, 1962

StatusPublished

Cited by5 cases

This text of 125 S.E.2d 437 (First-Citizens Bank & Trust Co. v. Barnes) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

First-Citizens Bank & Trust Co. v. Barnes, 125 S.E.2d 437, 257 N.C. 274, 1962 N.C. LEXIS 575 (N.C. 1962).

Pincite

Opinion

PeR Cueiam.

This Court, after reading the record and briefs, is unable to reach the conclusion that the parties are in disagreement as to the proper interpretation of the will or that there is genuine controversy as to how the trustee should perform its duties. If, in fact, controversy does exist, the questions have not been formulated in such manner as to disclose the need for decision, nor has evidence been adduced which will assist in finding the correct answers.

Where a trustee is in need of guidance in solving a problem presently confronting it, arising because of conflicting interpretations placed on the instrument creating the trust, a court of equity will, when presented with facts necessary for it to advise the trustee how it should act, furnish the requested advice; but courts do not provide mere advisory opinions with respect to hypothetical situations. Boswell v. Boswell, 241 N.C. 515, 85 S.E. 2d 899; Trust Co. v. Whitfield, 238 N.C. 69, 76 S.E. 2d 334; Lide v. Mears, 231 N.C. 111, 56 S.E. 2d 404; Wright v. McGee, 206 N.C. 52, 173 S.E. 31; Poore v. Poore, 201 N.C. 791, 161 S.E. 532; Finley v. Finley, 201 N.C. 1, 158 S.E. 549; Reid v. Alexander, 170 N.C. 303, 87 S.E. 125.

[277]*277The appeal entries indicate all defendants appealed. Only the guardian ad litem, however, has served case on appeal and assigned errors as required by our rule. He, only, of the defendants has filed a brief. Whether the allegations of the petition are sufficient to warrant a default judgment against William Barnes and Paul C. Stewart, Jr. of the kind here rendered need not be determined. See Collins v. Simms, 254 N.C. 148, 118 S.E. 2d 402.

Since there was neither sufficient allegation to warrant a judicial determination nor facts alleged or established to answer the questions propounded, the judgment rendered is erroneous and must be vacated.

If the parties desire, they may apply to the Superior Court for permission to amend their pleadings, and, on the amended pleadings, present such facts as will justify the court in making a judicial determination of the questions presented and requiring answers before the trustee can perform its duties.

Error.

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PeR Cueiam.

This Court, after reading the record and briefs, is unable to reach the conclusion that the parties are in disagreement as to the proper interpretation of the will or that there is genuine controversy as to how the trustee should perform its duties. If, in fact, controversy does exist, the questions have not been formulated in such manner as to disclose the need for decision, nor has evidence been adduced which will assist in finding the correct answers.

Where a trustee is in need of guidance in solving a problem presently confronting it, arising because of conflicting interpretations placed on the instrument creating the trust, a court of equity will, when presented with facts necessary for it to advise the trustee how it should act, furnish the requested advice; but courts do not provide mere advisory opinions with respect to hypothetical situations. Boswell v. Boswell, 241 N.C. 515, 85 S.E. 2d 899; Trust Co. v. Whitfield, 238 N.C. 69, 76 S.E. 2d 334; Lide v. Mears, 231 N.C. 111, 56 S.E. 2d 404; Wright v. McGee, 206 N.C. 52, 173 S.E. 31; Poore v. Poore, 201 N.C. 791, 161 S.E. 532; Finley v. Finley, 201 N.C. 1, 158 S.E. 549; Reid v. Alexander, 170 N.C. 303, 87 S.E. 125.

[277]*277The appeal entries indicate all defendants appealed. Only the guardian ad litem, however, has served case on appeal and assigned errors as required by our rule. He, only, of the defendants has filed a brief. Whether the allegations of the petition are sufficient to warrant a default judgment against William Barnes and Paul C. Stewart, Jr. of the kind here rendered need not be determined. See Collins v. Simms, 254 N.C. 148, 118 S.E. 2d 402.

Since there was neither sufficient allegation to warrant a judicial determination nor facts alleged or established to answer the questions propounded, the judgment rendered is erroneous and must be vacated.

If the parties desire, they may apply to the Superior Court for permission to amend their pleadings, and, on the amended pleadings, present such facts as will justify the court in making a judicial determination of the questions presented and requiring answers before the trustee can perform its duties.

Error.

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125 S.E.2d 437, 257 N.C. 274, 1962 N.C. LEXIS 575, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-citizens-bank-trust-co-v-barnes-nc-1962.

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