Cutler v. Winfield

Winborne, J. At the threshold of this appeal the admitted fact that the Trustees of the Washington Academy are dead, and there are no successors to them, presents an obstacle to a complete and proper decision in the present state of the record and case on appeal. While the record shows that John A. Wilkinson is appointed guardian ad litem for the Trustees of Washington Academy, no such representation by guardian ad litem is sanctioned by law — and as stated by Johnson, J., in McPherson v. Bank, 240 N.C. 1, 81 S.E. 2d 386, “The rule is that, in the absence of statute, capacity to be sued exists only in persons in being.” Indeed, with this Court, in the absence of a statute, a nonexistent person cannot be made a defendant in an action and be represented by a guardian ad litem, — and no statute is called to our attention. Hence this Court, in the exercise of its supervisory powers over lower courts (N. C. Const., Art. IV, Sec. 8; Elledge v. Welch, 238 N.C. 61, 76 S.E. 2d 340; McPher *559 son v. Bank, supra), will take cognizance ex mero motu of such lack of authority in a named guardian ad litem under such circumstances. Moreover, the Trustees of Washington Academy being dead, and there being no successors to them, to whom would title revert in the event the purported reversionary clause in the deed to these Trustees be effective ? It might be that an escheat to the University of North Carolina would take place. N. C. Const. IX, Sec. 7, G.S. 116-20. Hence it seems clear that the University of North Carolina should be made a party to this action so that any claim or interest it has or may not have in the old Washington Academy property, by escheat, may be adjudicated. Too, it may be there are others who might claim an interest in the property in the event the title reverts. Therefore, this Court, of its own motion, orders that the cause be remanded to the Superior Court of Beaufort County, North Carolina, to the end that the University of North Carolina, and all others having or claiming to have an interest in the property in question may be made parties defendant to this action, and served with process, and permitted to plead all in accordance with law and procedure. Error and remanded.