Farthing v. Farthing

Annotate this Case

70 S.E.2d 664 (1952)

235 N.C. 634

FARTHING et al. v. FARTHING et al.

No. 605.

Supreme Court of North Carolina.

May 21, 1952.

*665 Rountree & Rountree, Wilmington, for plaintiff appellees.

J. C. Wessell, Jr., Wilmington, for respondent appellants.

BARNHILL, Justice.

The court below was without original jurisdiction to entertain this action to nullify any part of the duly probated will which is the subject matter of this action. Hence the judgment entered must be vacated on authority of In re Will of Puett, 229 N.C. 8, 47 S.E.2d 488; Brissie v. Craig, 232 N.C. 701, 62 S.E.2d 330; Anderson v. Atkinson, 234 N.C. 271, 66 S.E.2d 886; and Anderson v. Atkinson, 235 N.C. 300, 69 S.E.2d 603.

The Declaratory Judgment Act, G.S. Ch. 1, art. 26, is designed to provide an expeditious method of procuring a judicial decree construing wills, contracts, and other written instruments and declaring the rights and liabilities of parties thereunder. It is not a vehicle for the nullification of such instruments. Nor is it a substitute or alternate method of contesting the validity of wills.

It does not follow, however, that the demurrer entered in this Court must be sustained. Plaintiffs' action does not fall in toto for want of jurisdiction of the trial court. In article IV plaintiff J. Watts Farthing is devised the beach property and the farm in fee simple. In article IX he is devised the same property subject to certain conditions and provisions which limit the estate devised. Do these provisions limit the estate conveyed both as to the beach property and the farm or only as to the farm? The language used is sufficiently ambiguous to require judicial construction and the petition is sufficient to entitle plaintiffs to a judicial decree definitely determining the nature and extent of his title to each parcel of property so devised to him.

To the end that the judgment entered may be vacated and the parties may be heard on the question properly presented by the pleadings, the cause is remanded.

Error and remanded.