Poore v. Poore, 201 N.C. 791 (1931)

Dec. 16, 1931 · Supreme Court of North Carolina

201 N.C. 791

MRS. GEORGE F. POORE et al. v. ROBERT R. POORE.

(Filed 16 December, 1931.)

Actions A a — Action may not be maintained to determine abstract or moot question.

The Declaratory Judgment Act, chapter 102, Public Laws of 1931, does not extend to a submission of a theoretical question or a mere abstraction, and this proceeding, instituted before the probate of the will to determine whether the mutual will of a husband and wife is revoked by the subsequent marriage of the husband after the wife’s death, is dismissed.

Appeal by defendant from Harwood, Special Judge, at October Term, 1931, of BubtcoMbe.

Controversy without action submitted under chapter 102, Public Laws 1931, upon an agreed statement of facts, to have the following queere answered: Is a joint and mutual will of husband and wife revoked by the subsequent marriage of the husband after the death of the wife?

On 25 December, 1928, George F. Poore and wife, Annie E. Poore, executed a joint and mutual will, in which Bobert E. Poore, defendant herein, is named executor, as well as beneficiary.

On 12 April, 1929, the said Annie E. Poore died.

On 7 August, 1929, the said George F. Poore married his deceased wife’s sister, Maggie D. Cole, who is also one of the beneficiaries under said will.

On 7 April, 1931, the said George F. Poore died.

The plaintiffs, who are beneficiaries under the said joint and mutual-will, contend that its validity was not affected by the subsequent marriage of the said George F. Poore, while the defendant, who is named executor therein, has been advised by counsel that said will was revoked by said subsequent marriage. C. S., 4134.

“It is agreed tbat if, upon tbe foregoing facts, tbe court is of opinion that tbe defendant should probate tbe said will, tbe defendant will probate it, qualify as executor and proceed with tbe administration of tbe estate, and tbat judgment shall be entered declaring tbat tbe will is not void under tbe foregoing facts; but if tbe court should be of opinion tbat tbe subsequent marriage of George E. Poore to Maggie D. Cole rendered tbe will void, then judgment shall be entered so declaring and tbe defendant will not be required to offer tbe same for probate.”

From a judgment declaring tbat tbe joint and mutual will in question was not rendered void by tbe subsequent marriage of tbe surviving bus-band, and directing tbat tbe defendant “have tbe said will admitted to probate and proceed with tbe administration of tbe estate,” tbe defendant appeals, assigning errors.

Mernmon, Adams & Adams for plaintiffs.

George M. Pritchard for defendant.

Stacy, C. J.

Tbe parties have misconceived tbe scope of tbe Declaratory Judgment Act, chap. 102, Public Laws 1931. It does not extend to tbe submission of a theoretical problem or a “mere abstraction.” Barton v. Grist, 193 N. C., 144, 136 S. E., 344. If it did, its validity might well be doubted. In re Cryan's Estate, 301 Pa., 386, 152 Atl., 675. It is no part of tbe function of tbe courts, in tbe exercise of tbe judicial power vested in them by the Constitution, to give advisory opinions, or to answer moot questions, or to maintain a legal bureau for those who may chance to be interested, for the time being, in the pursuit of some academic matter. Wood v. Braswell, 192 N. C., 588, 135 S. E., 529; Person v. Doughton, 186 N. C., 723, 120 S. E., 481; Muskrat v. U. S., 219 U. S., 346, 55 L. Ed., 246. See valuable article by Dean M. T. Yan Hecke in North Carolina Law Review, December, 1931, entitled, “The North Carolina Declaratory Judgment Act.”

It is provided by C. S., 4163 that no paper-writing or script, purporting to be a will, shall be valid as such, or effectual to pass any real or personal property, unless and until it is duly probated. Osborne v. Leah, 89 N. C., 433. And when a paper-writing or script, purporting to be a will, is properly admitted to probate, it becomes a valid will, until vacated on appeal or declared void by a competent tribunal. C. S., 4145; Holt v. Ziglar, 163 N. C., 390, 79 S. E., 805.

So, regardless of bow we might answer the question propounded, it would in nowise determine tbe validity or invalidity of the paper-writing or script mentioned as the joint and mutual will of George E. Poore and Annie E. Poore. In re Davis’ Will, 120 N. C., 9, 26 S. E., 636. It has not yet been offered for probate. Furthermore, it was admitted on the argument, and also appears from an inspection of the record, that only beneficiaries under the will are parties to this proceeding. The presence of a proper contradicter may be doubted (Freeman on Judgments, sec. 1356), but we put aside any consideration of the Declaratory Judgment Act, further than to say that the present proceeding is not within its terms.

Proceeding dismissed.