# Cocke v. Duke University

> Supreme Court of North Carolina · July 19, 1963 · 260 N.C. 1

URL: https://www.frixlaw.com/law-library/cases/9586518

## Case

- **Full name:** NORMAN A. COCKE, WILBURT C. DAVIDSON, DORIS DUKE, BENJAMIN F. FEW, BENNETTE E. GEER, PHILIP B. HEARTT, THOMAS F. HILL, AMOS R. KEARNS, THOMAS L. PERKINS, MARSHALL I. PICKENS, R. GRADY RANKIN, WATSON S. RANKIN, W. S. O’B. ROBINSON, JR., MARY D. B. T. SEMANS and KENNETH C. TOWE, as Trustees of the Duke Endowment, a Trust Established by JAMES B. DUKE by Indenture Dated December 11, 1924 v. DUKE UNIVERSITY, the Trustees of DAVIDSON COLLEGE; FURMAN UNIVERSITY; JOHNSON C. SMITH UNIVERSITY, Incorporated; CABARRUS MEMORIAL HOSPITAL, a Corporation, and GREENVILLE GENERAL HOSPITAL, a Corporation, Individually and as Representatives of the Class of Hospitals Similarly Situated; BAPTIST CHILDREN’S HOME OF NORTH CAROLINA, INC., a Corporation, and EPWORTH CHILDREN’S HOME, a Corporation, Individually and as Representatives of the Class of Child-Caring Institution Similarly Situated; Quarterly Conference of DUKE’S CHAPEL METHODIST CHURCH, an Unincorporated Association, and Quarterly Conference of HILL’S CHAPEL METHODIST CHURCH, an Unincorporated Association, Individually and as Representatives of the Class of Rural Churches Similarly Situated; REV. LOY D. THOMPSON, Individually and as a Representative of the Class of Superannuated Preachers Similarly Situated; MARY JANE WALTON, Individually and as a Representative of the Class of Widows of Methodist Ministers Similarly Situated; PATRICIA JANE WALTON, Individually and as a Representative of the Class of Orphans of Methodist Ministers Similarly Situated; HONORABLE WADE BRUTON, Attorney General of the STATE OF NORTH CAROLINA; HONORABLE DAN McLeod, Attorney General of the STATE OF SOUTH CAROLINA; NORTH CAROLINA HOSPITAL ASSOCIATION, INCORPORATED, a Corporation; SOUTH CAROLINA HOSPITAL ASSOCIATION, a Corporation; NORTH CAROLINA ASSOCIATION OF CHILD-CARING INSTITUTIONS, an Unincorporated Association; NORTH CAROLINA ANNUAL CONFERENCE OF THE METHODIST CHURCH, Southeastern Jurisdiction, an Unincorporated Association; WESTERN NORTH CAROLINA ANNUAL CONFERENCE OF THE METHODIST CHURCH, Southeastern Jurisdiction, an Unincorporated Association; JOHN S. CANSLER, as Guardian Ad Litem for All Minors, Unborn Persons, Unknown Persons, Corporations, Associations and Entities, and All Other Persons, Corporations, Associations and Entities, Whether Now in Being or Hereafter Coming Into Being Which May Now Have or Might Hereafter Acquire an Interest, Whether Vested or Contingent, in the Subject Matter Referred to in the Complaint in This Action or Any Interest Under the Indenture of Trust Described in the Complaint in Said Action and Who Are Not Represented by Representatives of Their Class or Otherwise; And MARY JANE WALTON, as General Guardian of the Estate of the Defendant PATRICIA JANE WALTON, a Minor, and as a Representative of the Class of Orphans of Methodist Ministers Similarly Situated
- **Court:** Supreme Court of North Carolina
- **Decided:** July 19, 1963
- **Citations:** 260 N.C. 1; 131 S.E.2d 909; 1963 N.C. LEXIS 643
- **Precedential status:** Published
- **Opinion:** Concurrence by Higgins
- **Judges:** Rodman, Higgins
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9586518

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9586518. Public record. Not legal advice.