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.