Elliott v. Ballentine, 7010SC84

• Decision Date: 06 May 1970
• Docket Number: No. 7010SC84,7010SC84
• Court: North Carolina Court of Appeals
• Parties: Carolyn Ballentine ELLIOTT and Rebecca Ballentine v. Bessie B. BALLENTINE, Lynton Yates Ballentine, and Julius S. Phoenix, Jr.

Page 552

173 S.E.2d 552

7 N.C.App. 682

Carolyn Ballentine ELLIOTT and Rebecca Ballentine v. Bessie B. BALLENTINE, Lynton Yates Ballentine, and Julius S.

Phoenix, Jr.

No. 7010SC84.

Court of Appeals of North Carolina.

May 6, 1970.

Maupin, Taylor & Ellis, by Armistead J. Maupin, Raleigh, for appellants.

Sanford, Cannon, Adams & McCullough, by Hugh Cannon and E. D. Gaskins, Jr., Raleigh, for the appellees.

HEDRICK, Judge.

The appellants bring forward on this appeal two assignments of error: (1) Did the court err in holding that there was no defect of parties and causes and (2) did the court err in holding that the complaint alleged a genuine controversy under the Declaratory Judgment Act?

G.S. § 1--254 provides that any person who has an interest 'under a deed will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected * * *' may have any question of construction determined and obtain a declaration of rights, status, or other legal relations thereunder. In actions under the Declaratory Judgment Act all persons who have or claim any interest which would be affected by the declaration must be made parties. G.S. § 1--260; 3 Strong, North Carolina Index 2d, Declaratory Judgment Act, § 2. The parties in the present action were proper parties within the terms of the Declaratory Judgment Act.

The office of a demurrer is to test the sufficiency of a pleading, admitting the truth of factual averments well stated and all relevant inferences of fact as may be deduced therefrom. 'Demurrers in declaratory judgment actions are controlled by the same principles applicable in other cases. Even so, it is rarely an appropriate pleading to a petition for declaratory judgment.' Newman Machine Co. v. Newman, 275 N.C. 189, 166 S.E.2d 63 (1969). However, demurrers are proper pleadings and should be sustained where the record is plain that no basis for declaratory relief exists, as where no actual controversy is alleged. 22 Am.Jur.2d, Declaratory Judgments, § 91.

In Lide v. Mears, 231 N.C. 111, 56 S.E.2d 404 (1949), Ervin, J., speaking for the Court, said:

'There is much misunderstanding as to the object and scope of this legislation (the Uniform Declaratory Judgment Act). 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. (Citations omitted). 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.

'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. (Citations omitted).'

In the case of Brandis v. Trustees of Davidson College, 227 N.C. 329, 41 S.E.2d 833 (1947), the proceeding was instituted to have determined the validity of an attempt to sell part of the trust property for the benefit and preservation of the trust. The court said:

'While proceedings under Art. 26 of the General Statutes--Declaratory Judgments--have been given a wide latitude, Lumber Mut(ual) Cas(ualty) Insurance Co. v. Wells, 225 N.C. 547, 35 S.E.2d 631; Johnson v. Wagner, 219 N.C. 235, 13 S.E.2d 419, nevertheless they are not without limitation, and it can hardly be said the court is expected to lend its general equity jurisdiction to such proceedings. 16 Am.Jur. 291. The purpose of the statutory enactment is to grant 'declaratory relief' and remove uncertainties when properly presented. G.S. § 1--256; Carolina Power & Light Co. v. Iseley, 203 N.C. 811, 167 S.E. 56; Walker v. Phelps, 202 N.C. 344, 163 (162) S.E. 727.'

It is not our duty in this opinion to undertake to construe the provisions of the will of the testator, L. Y. Ballentine; however, we will consider the allegations contained in the complaint in order that we may determine whether they are sufficient to entitle the plaintiffs to declaratory relief. The plaintiffs have not alleged that the defendant, Bessie B. Ballentine, holds the property she received as a life tenant under the will as trustee for the remaindermen. They have alleged that she holds the...