Poore v. . Poore

161 S.E. 532, 201 N.C. 791, 1931 N.C. LEXIS 99

• Court: Supreme Court of North Carolina
• Decided: December 16, 1931
• Status: Published

Opinion

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.