Hicks v. Hicks, 8110SC1218

• Decision Date: 01 February 1983
• Docket Number: No. 8110SC1218,8110SC1218
• Court: North Carolina Court of Appeals
• Parties: Thomas Stephen HICKS, Jane Lea Hicks, Vonnie Monroe Hicks, III, and Henry West Hicks v. Jean S. HICKS, Executrix of the Estate of Vonnie M. Hicks, Jr. and Jean S. Hicks, Individually.

Page 275

299 S.E.2d 275

60 N.C.App. 517

Thomas Stephen HICKS, Jane Lea Hicks, Vonnie Monroe Hicks III, and Henry West Hicks v. Jean S. HICKS, Executrix of the Estate of Vonnie M. Hicks Jr. and Jean S. Hicks, Individually.

No. 8110SC1218.

Court of Appeals of North Carolina.

Feb. 1, 1983.

Thomas Stephen Hicks, pro se.

Walter L. Horton, Jr., Raleigh, for defendant-appellee.

JOHNSON, Judge.

The question on appeal is whether the trial court erred in allowing the defendant's motion to dismiss upon the grounds set forth in the motion that plaintiffs' complaint failed to state a claim justiciable under the Uniform Declaratory Judgment Act, G.S. 1-253 et seq. and Rule 57 of the Rules of Civil Procedure. We find no error and affirm.

The Last Will and Testament of Dr. Vonnie Monroe Hicks, Jr. was admitted to probate and his surviving widow, Jean H. Hicks qualified as the executrix of his estate on 29 January 1980. At the time of probate the will was not accompanied by a document which was incorporated therein by reference. On 14 January 1981 the plaintiffs filed an action under the Uniform Declaratory Judgment Act to interpret the provisions of Articles IV and VI of the will.

Article IV states "My wife, JEAN S. HICKS, is a joint owner with me with right of survivorship of funds on deposit in our names in checking and savings accounts, and of certificates of deposit, shares of stock or beneficial interests, government and municipal bonds. Our residence at 847 Holt Drive, Raleigh, North Carolina, is likewise jointly owned by us as tenants by the entireties. It is my intent that all of the foregoing property will have passed to my wife upon my death by operation of law, and not by virtue of any provision of this will. If for any reason, however, there shall be any claim, action or suit alleging or contending that any portion of the foregoing is solely owned by me, and is includable in my residuary estate, then in such event it shall be deemed that I have given, bequeathed and devised to my wife, JEAN S. HICKS, all of my interest in and to any and all such property."

Article VI states:

"I have heretofore entered into an office and expense sharing agreement with Dr. William W. Foster, effective July 1, 1977 now in full force and effect. If at the time of my death I continue to be engaged in the practice of medicine under the foregoing arrangement with Dr. Foster, or any continuation or amendment to such agreement, the same is by this reference incorporated herein as if fully set forth for the purpose of clarifying this Article. Subject to the terms and conditions of the foregoing agreement, all proceeds from the sale or disposition of all tangible property and all accounts receivable related to or arising out of my medical practice, shall be deemed included in my residuary account."

In the complaint plaintiffs allege that by reason of contended patent and latent ambiguities in Articles IV and VI of the will "questions have arisen" as to whether certain property described passes under Article IV or into the residuary estate for distribution under Article V to the plaintiff legatees, Dr. Hicks' adult children by his former marriage. The two questions plaintiffs contend to have arisen with respect to Article IV are as follows:

"Whether funds on deposit in checking and savings accounts, and of certificates of deposit, shares of stock or beneficial interests, government and municipal bonds in the name of the testator only pass to Jean S. Hicks or whether they pass into the residuary estate.

Whether shares of stock or the proceeds thereof owned by the testator and Jean S. Hicks as tenants in common but not as joint tenants with rights of survivorship pass to Jean S. Hicks or whether they pass into the residuary estate."

With respect to Article VI, plaintiffs initially presented a question as to whether the office and expense sharing agreement dated 1 July 1977, under which Dr. Hicks and Dr. William W. Foster engaged in the practice of medicine, was required to be filed as a part of the probate of the will and administration of the estate. Subsequently copies of the agreement and an amendment thereto were filed with the Assistant Clerk of Superior Court, Wake County. By subsequent amendment to the complaint plaintiffs allege an additional question to have arisen with respect to Article VI:

"Whether the office and expense sharing agreement that the decedent entered into with Dr. William W. Foster, effective 1 July 1977, which was incorporated by reference into the will of Vonnie M. Hicks, Jr. could be properly amended subsequent to the date of execution of said will."

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. Lide v. Mears, 231 N.C. 111, 56 S.E.2d 404 (1949); Kirkman v. Kirkman, 42 N.C.App. 173, 256 S.E.2d 264 (1979). In this appeal plaintiffs argue that the alleged patent ambiguity contained in Article IV and latent ambiguity contained in Article VI give rise to an "actual, genuine existing controversy" as to the proper interpretation of the will in question.

In determining whether an actual controversy exists in the present case the following principles concerning the scope of the declaratory judgment act must be kept in mind:

"[The Act] does not undertake to convert judicial tribunals into counselors 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 ...

* * *

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 rights, status, or other legal relations."

Lide v. Mears, supra at 117-118, 56 S.E.2d at 409.

In Consumers Power v. Power Co., 285 N.C. 434, 439, 206 S.E.2d 178, 182 (1974), the Supreme Court defined the applicable test for determining a motion to dismiss pursuant to Rule 12(b)(6) as follows:

"A Motion to Dismiss pursuant to Rule 12(b)(6) performs the same function as the old common law general demurrer. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161. ...