Jones v. Warren, 31

• Decision Date: 14 June 1968
• Docket Number: No. 31,31
• Citation: 274 N.C. 166,161 S.E.2d 467
• Parties: Samuel G. JONES, Sr. v. Nina Williams WARREN and husband, William Warren.
• Court: North Carolina Supreme Court

Page 467

161 S.E.2d 467

274 N.C. 166

Samuel G. JONES, Sr. v. Nina Williams WARREN and husband, William Warren.

No. 31.

Supreme Court of North Carolina.

June 14, 1968.

George T. Davis, Swan Quarter, and Wheatly & Bennett, Beaufort, for plaintiff appellant.

James R. Vosburgh and John A. Wilkinson, Washington, for defendant appellees.

SHARP, Justice:

The complaint contains the usual and essential allegations in an action of ejectment: that plaintiff owns the described land in fee; that he is presently entitled to its possession; and that defendant who is in possession wrongfully withheld from plaintiff to his specified damage. 1 McIntosh, N.C. Practice and Procedure § 1065 (2d Ed. 1956). Defendants concede that it states a cause of action in ejectment. Had defendants' motion been a demurrer to the complaint it must necessarily have been overruled. G.S. § 1--127; McIntosh, supra § 1194. It was not, however, a demurrer; it was, in fact, a mislabeled motion for judgment on the pleadings. The judgment and appeal entries clearly disclose that the court and the parties so treated it, and that the will of Alice Williams and its probate, the will of Pinta Williams and its probate, and the deed from Wilma Williams to plaintiff were considered as exhibits incorporated by reference in the answer and reply. Appellant's brief is written 'on the assumption' that this Court will deem 'the defendants' action to be 'motion for judgment on the pleadings. " We so treat it.

'The motion for such judgment is in the nature of a demurrer, allowable against the plaintiff only when the complaint as modified by the reply fails to allege facts sufficient to state a cause of action or admits facts which constitute a complete legal bar thereto.' Van Every v. Van Every, 265 N.C. 506, 510, 144 S.E.2d 603, 606. See also Ferrell v. Worthington, 226 N.C. 609, 39 S.E.2d 812; Coleman v. Whisnant, 225 N.C. 494, 35 S.E.2d 647. 'When a party moves for judgment on the pleadings, he admits for the purposes of the motion (1) the truth of all well pleaded facts in the pleadings of his adversary, together with all fair inferences to be drawn from such facts, and (2) the untruth of his own allegations insofar as they are controverted by the pleadings of his adversary. The law does not authorize the entry of a judgment on the pleadings in any case where the pleadings raise an issue of fact on any single material proposition.' Shaw v. Eaves, 262 N.C. 656, 660, 138 S.E.2d 520, 524. Accord, Erickson v. Starling, 235 N.C. 643, 71 S.E.2d 384. See 3 Strong, N.C. Index, Pleadings § 30 (1960 & Supp.).

The answer denies that plaintiff owns and is entitled to the possession of the land described in the complaint. Defendants allege: The land in suit was formerly the homeplace of Alice Williams. In her will--a copy of which is attached to the answer--she devised the property to her two daughters, Addie and Nina for life 'if they so elected,' with remainder to her son, Pinta. Addie and Nina elected to claim the life estate and have possessed the property since their mother's death. Plaintiff has acquired the vested remainder devised to Pinta. The reply admits the will of Alice Williams and its probate in common form as alleged in the answer and makes these additional disclosures: Pinta, by his will, which was probated on 14 January 1954, devised the land to his wife, Wilma. For a valuable consideration, by deed dated 23 May 1956 and recorded 29 May 1956, Wilma conveyed the property to plaintiff. Thereafter, in May 1957, the following 'codicil' to the will of Alice Williams was probated in solemn form: 'Nina Warren hear life estate if desired.' Plaintiff alleges that, as 'an innocent purchaser for value,' he acquired the land subject only to the life estate of Addie, who is now dead. Thus, in the reply, plaintiff sets out the muniments of title upon which he bases his conclusion, alleged in the complaint, that he is entitled to the immediate possession of the land.

The pleadings establish that plaintiff and Nina claim the land from a common source, the will of Alice Williams, and that plaintiff owns the fee. The question is whether he took it subject to a life estate in Nina. By dismissing plaintiff's action the trial court held that the pleadings, which incorporated the record evidence, disclosed as a matter of law that he did.

The answer alleges that the will of Alice Williams was holographic. This allegaton is not admitted by the reply, and the record shows that the will was probated in common form as an attested will upon the oath of two of the three attesting witnesses required by G.S. § 31--18.1--not as a holographic in the manner required by G.S. § 31--18.2. The signatures of the three attesting witnesses appear beneath that of the testratrix. Each of the two who proved the will swore that Alice Williams 'subscribed her name at the end of the paper writing' and that the witness 'did subscribe his name at the end of the will.' Thus, the affidavits upon which probate in common form was had established that the phrase under which Nina claims was not on the paper writing at the time the witnesses affixed their signatures. At the May 1957 Term of the Superior Court of Hyde, the phrase, 'Nina Warren hear life estate if desired,' which appears beneath the signature of the witness was probated in solemn form as a codicil to the will. The absence of signatures Beneath the phrase discloses that it was necessarily probated as a holographic codicil.

Defendants argue, however, (1) that the clerk probated the entire paper writing in common form; (2) that even if the probate was erroneous, it was conclusive evidence of the validity of the codicil until set aside by direct attack; and (3) even if it was not probated, the record of the codicil was notice to plaintiff of Nina's title which prevented him from acquiring title as an innocent purchaser for value.

G.S. § 31--19 provides that record and probate of a will is conclusive evidence of its validity until it is vacated or declared void by a competent tribunal. Under this statute, a will probated and recorded in accordance with the applicable statute may not be collaterally attacked and constitutes a muniment of title. In re Will of Puett, 229 N.C. 8, 47 S.E.2d 488. However, as pointed out by Parker, J. (now C.J.), in Morris v. Morris, 245 N.C. 30, 35, 95 S.E.2d 110, 114, '(T)his statute (G.S. § 31--19) is restricted to a decree of probate regular on its face, and does not apply where on the face of the decree of probate it affirmatively shows that the will was not probated as required by mandatory applicable statutes for the probate of wills * * *.' G.S. § 31--39 provides, 'No will shall be effectual to pass real or personal estate unless it shall have been duly proved and allowed in the probate court of the proper county * * *.' In Morris v. Morris, supra, an action under the Declaratory Judgment Act for construction of a will, the probate revealed that a holograph had been probated upon the testimony of only two witnesses. This Court declined to construe an unprobated will because 'the probate shows on its face that the paper writing * * * has never been validly proven and probated as a holographic will, and is therefore ineffective to pass real or personal property, G.S. § 31--39.' Id. at 33, 95 S.E.2d at 112. Accord, Paul v. Davenport, 217 N.C. 154, 7 S.E.2d 352; Cartwright v. Jones, 215 N.C. 108, 1 S.E.2d 359; Leatherwood v. Boyd, 60 N.C. 123; 57 Am.Jur. Wills § 942 (1948). It is '(t)he probate of a will in the manner provided by law' which is 'conclusive in evidence of the validity of the will until it is vacated on appeal or held void by a competent tribunal.' Crowell v. Bardsher, 203 N.C. 492, 493, 166 S.E. 331, 332; Edwards v. White, 180 N.C. 55, 103 S.E. 901. In other words, the clerk has jurisdiction to probate a will only in accordance with the applicable statute. Thus, prior to its probate in solemn form after plaintiff acquired the land, the codicil was not a 'muniment of title.' Before its probate, it conveyed no life estate to Nina. Hargrave v. Gardner, 264 N.C. 117, 141 S.E.2d 36; Paul v. Davenport, supra.

Defendants' first two contentions therefore cannot be sustained. We next consider their third. The motion for judgment on the pleadings admits plaintiff's...