Opinion

Cocke v. Duke University

  • 260 N.C. 1
  • 131 S.E.2d 909
  • 1963 N.C. LEXIS 643
Court
Supreme Court of North Carolina
Filed
Jul 19, 1963
Status
Published
Author
Higgins
On the bench
Rodman, Higgins
Cited by
19 cases

The opinion

Higgins, J.,

concurring:

By the indenture now before us, Mr. Duke manifested a clear intent that tlhe beneficiaries of the Endowment and the business enterprises which he helped to create should complement and support each other. By the third division of the indenture the trustees were required to lend surplus fund's to the Duke Power Company or to invest them in its securities, or in those of -.its subsidiaries. The amount of the surplus emphasizes the importance of this right.

Manifestly 'the court cannot take away from Duke Power Company, or from its subsidiaries, this preference without their presence before the court. Their presence must be in their corporate capacities. The court should have required that these corporations be made parties to the proceeding and be given an opportunity to be heard before impairing their rights under the indenture.

The majority opinion, in which I fully concur, reverses the judgment of the Superior Court, hence the indenture remains as executed. My only purpose is to call attention to. what I consider a defect of parties.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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