No. 30.

56 S.E.2d 404 (1949)

231 N.C. 111

LIDE et al. v. MEARS et al.

Supreme Court of North Carolina.

November 23, 1949.

Attorney(s) appearing for the Case

Smathers & Meekins, Asheville, for plaintiffs, appellees.

W. R. Francis, Waynesville, for defendants, appellants.

ERVIN, Justice.

The Uniform Declaratory Judgment Act, as approved by the National Conference of Commissioners on Uniform State Laws in 1922 and as adopted in North Carolina in 1931, provides that "courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed." G.S. § 1-253.

There is much misunderstanding as to the object and scope of this legislation. Despite some notions to the contrary, it does not undertake to convert judicial tribunals into counsellors and impose upon them the duty of giving advisory opinions to any parties who may come into court and ask for either academic enlightenment or practical guidance concerning their legal affairs. Town of Tryon v. Duke Power Co., 222 N.C. 200, 22 S.E.2d 450; Allison v. Sharp, 209 N.C. 477, 184 S.E. 27; Poore v. Poore, 201 N.C. 791, 161 S.E. 532; Anderson on Declaratory Judgments, section 13. This observation may be stated in the vernacular in this wise: The Uniform Declaratory Judgment Act does not license litigants to fish in judicial ponds for legal advice.

The Act recognizes the need of society "for officially stabilizing legal relations by adjudicating disputes before they have ripened into violence and destruction of the status quo". Borchard on Declaratory Judgments 2nd Ed., 4. It satisfies this social want by conferring on courts of record authority to enter judgments declaring and establishing the respective rights and obligations of adversary parties in cases of actual controversies without either of the litigants being first compelled to assume the hazard of acting upon his own view of the matter by violating what may afterwards be held to be the other party's rights or by repudiating what may be subsequently adjudged to be his own obligations. Town of Tryon v. Duke Power Co., supra; Green v. Inter-Ocean Casualty Co., 203 N.C. 767, 167 S.E. 38; 16 Am. Jur., Declaratory Judgments, section 7; 1 C.J.S., Actions, § 18; Anderson on Declaratory Judgments, section 71.

While the Uniform Declaratory Judgment Act thus enables courts to take cognizance of disputes at an earlier stage than that ordinarily permitted by the legal procedure which existed before its enactment, it preserves inviolate the ancient and sound juridic concept that the inherent function of judicial tribunals is to adjudicate genuine controversies between antagonistic litigants with respect to their rights, status, or other legal relations. This being so, an action for a declaratory judgment will lie only in a case in which there is an actual or real existing controversy between parties having adverse interests in the matter in dispute. Etheridge v. Leary, 227 N.C. 636, 43 S.E.2d 847; Town of Tryon v. Duke Power Co., supra; Wright v. McGee, 206 N.C. 52, 173 S.E. 31; Carolina Power & Light Co. v. Iseley, 203 N.C. 811, 167 S.E. 56; In re Eubanks, 202 N.C. 357, 162 S.E. 769; 16 Am.Jur., Declaratory Judgments, section 9; 1 C.J.S., Actions § 18; Anderson on Declaratory Judgments, section 22; Borchard on Declaratory Judgments, 2d Ed., 40-48. It necessarily follows that when a litigant seeks relief under the declaratory judgment statute, he must set forth in his pleading all facts necessary to disclose the existence of an actual controversy between the parties to the action with regard to their respective rights and duties in the premises. Town of Tryon v. Duke Power Co., supra; Carolina Power & Light Co. v. Iseley, supra; 16 Am.Jur., Declaratory Judgments, section 64; 1 C.J.S., Actions, § 18; Anderson on Declaratory Judgments, section 80. If he fails to do this, the other party cannot confer jurisdiction on the court to enter a declaratory judgment by failing to demur to the insufficient pleading. Wright v. McGee, supra.

Candor compels the observation that the pleadings in the case at bar do not show the existence of a controversy between the parties as to the meaning of the will or as to their rights thereunder with the explicitness of allegation desirable in declaratory judgment actions. But when these pleadings are interpreted with extreme liberality, they do reveal by implication rather than by express averment that the plaintiffs and the defendants are in dispute as to whether the duties of Lawrence K. Mears as surviving trustee of the testamentary trust have ceased and as to the respective interests given to them by the will and codicil in the store property and the hotel property of the testator in Canton. In consequence, the court below was empowered to render a declaratory judgment covering these matters.

By virtue of the specific direction of its creator as set forth in the eleventh item of the will and the third item of the codicil, the testamentary trust continued for twenty years after the death of the testator, and terminated upon the expiration of that period. At that time the corpus of the trust passed to the beneficiaries entitled to it under the will, and the offices and duties of the trustees ended. 54 Am. Jur., Trusts, section 73; 65 C.J., Trusts, section 15. It appears, therefore, that the trial court properly adjudged that "all duties of Lawrence K. Mears as trustee ceased upon the termination of the trust estate on December 8, 1939."

The judgment declared that Lawrence K. Mears, Zennie Lide, Lucile Wells Marr, and Walter Marlette own the store property in the manner hereinafter set out, and that the remainder of the plaintiffs and the defendants have no interest therein. The defendants excepted to this adjudication.

It is elementary that a will must be construed as it is written. Hornaday v. Hornaday, 229 N.C. 164, 47 S.E.2d 857. The controlling testamentary provisions in this aspect of the case are the third item of the will and the first item of the codicil. When the words of the testator are accorded their plain meaning, it is evident that the codicil effects drastic changes in the provisions of the will relating to the store property. The third item of the will is concerned with the income arising from this property whereas the first item of the codicil deals with the property itself. This codicillary provision makes specific disposition of the store property in fee and in that way precludes its division among "the heirs" of the testator's children under the eleventh item of the original will.

The trial court adjudged that Lawrence K. Mears took a fee simple title to an undivided one-half interest in the store property under the portion of the first item of the codicil providing that "the said Lawrence K. Mears shall have the said one-half interest for and during his natural life, and at his death in fee to his bodily heirs." This ruling is sound for the rule in Shelley's case applies to this devise. Williams v. Norfolk-Southern R. Co., 200 N.C. 771, 158 S.E. 473; Helms v. Collins, 200 N.C. 89, 156 S.E. 152; Bradley v. Church, 195 N.C. 662, 143 S.E. 211; Hartman v. Flynn, 189 N.C. 452, 127 S.E. 517; Merchants Nat. Bank v. Dortch & Hines, 186 N.C. 510, 120 S.E. 60; Jarman v. Day, 179 N.C. 318, 102 S.E. 402.

The trial court further declared that Zennie Lide holds a life estate in the other undivided half interest in the store property, and that the remainder in such other undivided half interest therein is vested in Lucile Wells Marr and Walter Marlette in equal shares and in fee simple absolute. This conclusion is valid.

The first item of the codicil conferred upon Lucile Wells Marr and Cornelia Wells Marlette, respectively, a remainder in fee in one undivided half of the store property, defeasible as to each upon her dying without issue living at the time of her death, and in case either died without issue living at the time of her death, her share was to be owned in fee by the survivor. G.S. § 41-4; Henderson v. Western Carolina Power Co., 200 N.C. 443, 157 S.E. 425, 80 A.L.R. 497; James v. Griffin, 192 N.C. 285, 134 S.E. 849; Ziegler v. Love, 185 N.C. 40, 115 S.E. 887. The estate of Cornelia Wells Marlette in the remainder was converted from a defeasible fee into a fee simple absolute on her death leaving a living son, and her son thereupon acquired her share in the remainder entirely freed from the contingent limitation over. Vinson v. Gardner, 185 N.C. 193, 116 S.E. 412. Moreover, the death of Cornelia Wells Marlette made the estate of Lucile Wells Marr in the remainder absolute under the rule that "where an estate has been devised in fee, subject to be defeated by the happening of some future event or contingency, if the happening of such event or contingency becomes impossible of occurrence, the defeasible fee becomes a fee simple absolute." 69 C.J., Wills, section 1559. The gift over of the share in the remainder devised to Lucile Wells Marr was to take effect upon the happening of two events: (1) The death of Lucile Wells Marr without issue living at her death; and (2) the survivorship at her death of her sister, Cornelia Wells Marlette. The prior death of the latter made the happening of the second of these events impossible, thereby destroying the gift over with the result that the fee of Lucile Wells Marr in her share in the remainder became absolute and indefeasible. Gorham v. Betts, 86 Ky. 164, 5 S.W. 465; Anderson v. Brown, 84 Md. 261, 35 A. 937; Armstrong v. Thomas, 112 Miss. 272, 72 So. 1006; Groves v. Cox, 40 N.J.L. 40; Gordon v. Gordon, 32 S.C. 563, 11 S.E. 334; Lowry v. O'Brian, 4 Rich.Eq., S.C., 262, 57 Am.Dec. 727; Smith v. Smith, 112 Va. 617, 72 S.E. 119; 57 Am. Jur., Wills, section 1247.

This brings us to the adjudication of the court as to the respective rights of the parties in the hotel property. The judgment declared "that Mrs. Zennie Lide is entitled to the free occupancy of the hotel building and the lot on which it is situated for the term of her natural life, either personally or through tenants, or so long as she shall pay the taxes and upkeep and repair of said building and keep the same insured against loss by fire" and that the "heirs" of the testator's children and their representatives, who are properly identified by the court, own the remainder in the hotel property in certain specified proportions. The defendants excepted to this ruling insofar as it adjudged that Mrs. Zennie Lide has any present interest in the hotel property.

The testator placed his real estate, including the hotel property, in trust for the twenty years next succeeding his death. By the eleventh item of his will as modified by the third item of his codicil, he directed that at the expiration of that period his trust estate should be equally divided between "the heirs" of his children, who should take per stirpes, i. e., by right of representation through their respective parents and not as individuals. Haywood v. Rigsbee, 207 N.C. 684, 178 S.E. 102; Lee v. Baird, 132 N.C. 755, 44 S.E. 605; Ward v. Stow, 17 N.C. 509, 27 Am.D. 238; 69 C.J., Wills, section 1312. No other testamentary provision renders the eleventh item of the will inapplicable to the hotel property. The seventh item of the will and the fourth item of the codicil do not do so. In truth, they merely conferred upon Zennie Lide a conditional right to occupy this property pending its sale by the trustees or the termination of the trust. Hence, the right of occupancy of Mrs. Lide under the will and codicil did not survive December 8, 1939, and the court erred in adjudging that she has any present interest in the hotel property. This error was evidently occasioned by a too literal reliance upon certain language in the opinion in Lide v. Wells, supra, where the court was merely considering the respective rights of the trustees and Mrs. Lide in the hotel property during the existence of the trust.

G.S. § 41-6 provides that "a limitation by deed, will, or other writing, to the heirs of a living person, shall be construed to be to the children of such person, unless a contrary intention appear by the deed or will." By virtue of this statute, the word "heirs", as used in the eleventh item of the will, must be construed to mean the "children" of the son and daughter of the testator. Moseley v. Knott, 212 N.C. 651, 194 S.E. 100; Massengill v. Abell, 192 N.C. 240, 134 S.E. 641; Lide v. Wells, supra. All of the children of Lawrence K. Mears and Zennie Lide were living when the testator died. Consequently, they took estates in the hotel property which vested in right at that time with only the possession or enjoyment postponed until the expiration of the twenty years. Bell v. Gillam, 200 N.C. 411, 157 S.E. 60; Lide v. Wells, supra; Cooley v. Lee, 170 N.C. 18, 86 S.E. 720; Jones v. Oliver, 38 N.C. 369. Alton Horace Mears died subsequent to the termination of the trust, and his estate in the hotel property thereupon descended to his children, subject to the right of his widow to dower therein. The record does not disclose the date of the death of Cornelia Wells Marlette. Since her interest vested in right at the death of the testator, it passed by inheritance to her son, regardless of whether she died before or after the expiration of the twenty year period specified in the will. Knight v. Knight, 56 N.C. 167, 168; Mason v. White, 53 N.C. 421; Knight v. Wall, 19 N.C. 125. It appears, therefore, that the following parties own the hotel property as tenants in common in the following proportions: (1) Lucile Wells Marr and Walter Marlette, one-fourth each; (2) Thelma Mears Henderson, Mark Mears, Geraldine Mears Fields, Mamie Ruth Mears Halley, and Linton Norman Mears, one-twelfth each; and (3) Bernard Lawrence Mears, Lynn Laree Mears, and Mary Victoria Mears, one-thirtysixth each. The shares of the last three are subject to the dower right of their mother, Florence Sadler.

The court rightly refrained from making any specific declaration as to the salableness of the title to the property in suit. This is true because declaratory judgment acts do not empower courts to give advisory opinions as to the marketability of land merely to enable owners to allay the fears of prospective purchasers. Anderson on Declaratory Judgments, section 8.

The court did not stop, however, with mere declarations as to the meaning of the will and codicil, and as to the rights of the parties thereunder in the store property and the hotel property. It incorporated in the judgment provisions ordering the sale of the store property and of the specifically described portion of the hotel property for named amounts, and appointing a commissioner to make such sales and to execute conveyances to the purchasers, and providing for the division of the proceeds arising from such sales among the parties to the action according to their respective rights in the land to be sold as declared by the judgment.

These provisions are not declaratory in nature, and the plaintiffs, who are sui juris, have not appealed. For these reasons, we are not concerned on this appeal with the validity of these provisions of the judgment insofar as they relate to the sale of the store property and the interests of the various plaintiffs in the hotel property. But an appropriate exception interposed by the defendants requires us to pass upon their effectiveness insofar as they purport to authorize or direct a sale of the interests of the infant defendants in the hotel property or any part thereof.

There is some diversity of opinion in the various jurisdictions as to how far courts may properly go in awarding affirmative relief in declaratory judgment actions. The present record presents no occasion for expressing an opinion on this question. It is plain that the declaratory judgment acts do not abrogate the ordinary rules of pleading and evidence. Even the most liberal courts will not grant affirmative relief in a declaratory judgment action in the absence of pleading and proof warranting such relief. 16 Am.Jur., Declaratory Judgments, section 73.

Since there is no suggestion by pleading or evidence that the proposed sale of the interests of the infant defendants in the hotel property will benefit them, the order for the sale of such interests is without warrant in the record and must be stricken from the judgment, even if it be conceded that the court may exercise in a declaratory judgment action its inherent power as a court of equity to authorize sales of the real estate of infants in proper instances. Marsh v. Dellinger, 127 N.C. 360, 37 S.E. 494; Rowland v. Thompson, 73 N.C. 504; Williams v. Harrington, 33 N.C. 616, 53 Am.Dec. 421.

The judgment in the trial court is modified to conform to this opinion. As thus modified, it is affirmed.

Modified and affirmed.


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