Moore v. Moore ( 1941 )

I agree with the dissenting opinion of Mr. Justice DREW that this court has heretofore consistently held as it did inKariher's Petition (No. 1), 284 Pa. 455, 472, 131 A. 265, that it "will not decide future rights in anticipation of an event which may not happen." The Uniform Declaratory Judgment Act has been adopted by at least twenty-five states. The courts of these states have uniformly refused to enter declaratory judgments on hypothetical facts. Plaintiff here asks for anadvisory opinion on a contract which may never become operative. There are probably thousands of contracts in this jurisdiction as to whose rights and obligations the parties differ but it is no part of the duty of courts to render advisory opinions on these contracts before litigation concerning them is either actual or "imminent and inevitable".

Leading cases in other jurisdictions show judicial refusal to enter declaratory judgments on records such as this. The Supreme Court of Idaho said that the Act can be invoked only when the question "involves actual and existing facts": State ex rel. Miller v. State Board ofEducation (1935), 56 Idaho 210, 52 P.2d 141. The Supreme Court of Colorado said: "This Act was not intended to repeal the statute prohibiting judges from giving legal advice nor to impose the duties of the profession on the courts, nor to settle mere academic questions": Gabriel v. Board of Regents (1928), 83 Colo. 582, 267 P. 407. The adjudication now made is based on "facts" which may never arise. As the court below well expressed it: "It is difficult to see how there can be an actual controversy between the parties or the ripening seeds of a controversy inasmuch as neither party will have any rights under the writing in question until one or the other is deceased. The rights of the parties have not accrued. It is only in the event that the plaintiff dies before the defendant that any question can arise."

The Supreme Court of North Dakota said: "An action or proceeding does not lie under the Declaratory Judgments Act to obtain a decision which is merely advisory or which merely determines abstract questions: Langer v. State, 1939, 69 N.D. 238,284 N.W. 238." In Tanner v. Boynton Lumber Co., 129 A. 617, 618, the New Jersey Court of Chancery aptly said: "To entitle complainants to have this court consider the situation set out in their bill and to render a declaratory judgment thereon, it should appear from the facts alleged that they have present rights against the persons whom they make parties to the proceedings, with respect to which they may be entitled to some relief." Plaintiff here has no present rights against respondent. Nor has he any present rights against her. She during her life-time is unrestricted in the disposal of her personal property, and only in the events that (a) she diesbefore her husband and (b) leaves a personal estate, and (c)does not by will give him the equivalent of a husband'sstatutory interest in that estate, can there be any legal controversy over the antenuptial agreement. At the present time there is "no actual controversy existing between contending parties" within the meaning of the DeclaratoryJudgment Law. This husband and wife simply differ as to the interpretation of a contract and would like an advisory opinion on it from this court. If, for example, a husband made a will containing certain provisions for his wife and he and she differed in their lifetime in their interpretation of those provisions, that difference of opinion would not be an "actual controversy" in any legal sense. Should they go into court and ask an "advisory opinion" in the form of a "declaratory judgment" to settle their difference of opinion, the court would under all the decisions promptly inform them that the Declaratory Judgment Act was not intended to be used for any such purpose. A "controversy" in a legal sense is a conflict or clashing of immediate legal interests. It does not mean simply differences of opinion between two persons as to the provisions of certain contracts they have entered into. To have a controversy at law there must be lurking in the dispute or difference of opinion between the parties at least the likelihood of an imminent legal cause of action by one against the other.

The Supreme Court of the United States in Aetna LifeInsurance Co. v. Haworth, 300 U.S. 227, 240, in defining the word "controversy" in the Federal Declaratory Judgment Act said, speaking through Mr. Chief Justice HUGHES: "A 'controversy' in this sense must be one that is appropriate for judicial determination. Osborn v. United States Bank, 9 Wheat. 738, 819. A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot. United States v.Alaska S. S. Co., 253 U.S. 113, 116. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. South Spring Gold Co. v. AmadorGold Co., 145 U.S. 300, 301; Fairchild v. Hughes, 258 U.S. 126,129; Massachusetts v. Mellon, 262 U.S. 447, 487, 488. It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." (Citing numerous cases). In the instant case, no "specific relief" can be given for there is no immediate hazard to be relieved against. We are merely asked to advise "what the law would be upon a hypothetical state of facts" — a state of facts which is not in being and may never come into being.

The Declaratory Judgment Act has been applied to cases arising from the interpretation of contracts only where such a judgment serves to avoid a breach of contract which would result in an action for damages. Its function in cases arising from differences in the interpretation of contracts is to enable a party to avert penalties and forfeitures. When A is about to do an act that B challenges his right to do and A does not test the validity of the challenge, A runs the risk of breaking a contract, to his immediate detriment. When for A to act on his challenged interpretation of his contract is to invite an action for damages or some other penalty, the prudent thing for him to do is to ask for a declaratory judgment on the legal question presented by the conflicting interpretations. For example in Girard Trust Co., Agent, v. Tremblay M. Co.,291 Pa. 507, 140 A. 506, a three-story non-fireproof building was destroyed by fire. An act passed after the date of the lease prohibited the erection of non-fireproof buildings of a height greater than two stories to be used as was, in this instance, the building destroyed. The tenant demanded that the landlord erect a three-story fireproof building or a two-story building with abatement of rent. The landlord offered to erect either a two-story fireproof building or a three-story non-fireproof building at the same rental. The tenant knew he could not use a three-story non-fireproof building for the same purpose he had used the building destroyed because the act above referred to forbade its use for that purpose (i. e., for automobile sales and a service station). This situation presented a controversy calling for the immediate interpretation of the lease contract between the parties. The court said (p. 524): "In a case like the present, by proceeding according to the Declaratory Judgments Act, the parties avoid the necessity of first actually erecting a building in order to be in a position to obtain a judicial construction of their respective rights and liabilities."

In the leading English case of Societe Maritime etCommerciale v. Venus Steam Shipping Co., Ltd., 9 Com. Cas. 289, plaintiffs had undertaken by contract to load ore on steamers to be furnished by one L, the alleged assignor of the defendants for five years. Plaintiffs contended that there was no valid assignment to the defendants, that L was not the defendants' agent, and that there was no novation. As the original contract had over a year to run and as plaintiffs did not wish to break it and so subject themselves to an action for damages, they asked the court for a declaration that the contract was no longer binding on them. The court said: "They are entitled to a declaration as to whether or not the contract is binding upon them. They are not bound at their peril to refuse to perform it and then to be liable to heavy damages for not performing it for the space of the next year and a half." In a Kansas case the plaintiff school district claimed release from a written guaranty to provide school rooms, because the legislature had by the creation of a community high school relieved much property from taxation and by this change of conditions justified the plaintiff's release: School Dist. No.19 of Sheridan County v. Sheridan Community High School,130 Kan. 421, 286 P. 230 (1930).

In all these cases and others like them where the right to a declaratory judgment has been upheld, the plaintiff sought an escape from the imminent peril of an action for damages or some other hazard if he acted on his interpretation of the contract between him and another. It is a plaintiff's reasonable fear of possible damage to himself which may arise from his contemplated act which clothes him with that legal interest which makes his case justiciable in declaratory judgment proceedings. For example, in Brokaw v.Fairchild, 237 N.Y. Supp. 6 (1929), the plaintiff, a life tenant of an old-fashioned New York residence, sued the remaindermen and trustee for a declaratory judgment that he was privileged to demolish the building, which had become outmoded in that neighborhood, and to erect an apartment house which would pay an income for the benefit of all concerned. The defendants contended that such demolition would be waste, that the other members of the family had received residences in the neighborhood, and that it would spoil the plottage value of the property. In denying the declaration sought, the court saved the plaintiff from the danger of acting on his own mistaken view of his rights, and removed all uncertainty from the legal position of all parties. In Hess v. Country Club Park, 213 Cal. 613,2 P.2d 782, the Supreme Court of California said in a case in which a covenantor in a deed sought to obtain a declaration of his privilege to depart from the restriction: "If such a declaration is refused, the plaintiff is put in the hazardous position of being obliged to violate the terms of the restriction before he can know whether or not he must suffer the penalties mentioned". In Evangelical Lutheran Church v.Sahlem, 254 N.Y. 161, 172 N.E. 455, a church had claimed it was free to build a church edifice in disregard of a restriction limiting the use of the land to residential purposes. One person in the neighborhood objected. The church had begun to break ground for the edifice but before proceeding further with the work, it thought it expedient to sue the objecting covenantee for a declaration as to its privilege to build. The court below sustained its claim of right; the Court of Appeals denied its claim, but in doing so Chief Judge CARDOZO for the court commended the church's caution in asking for a declaratory judgment before incurring the legal damages for breach of covenant which its action would have entailed. Judge CARDOZO said: "Here is no case of irreparable hardship, shocking to the conscience, as where a mandatory injunction would destroy a finished building to vindicate a doubtful right."

In the instant case the plaintiff runs no risk in doing whatever she pleases with her property in reliance on her own interpretation of her ante-nuptial contract. No matter how that contract is interpreted, her freedom of legal action is in no way curtailed by it and she runs no risk of incurring any damages or other penalties. True it is that it may be veryconvenient for her to know in advance whether under that contract her husband if he survives her can claim any interest in her personal estate; so it would be equally convenient for any person who is about to make a will disposing of his estate to know in advance whether after his death his estate will be depleted or not by reason of certain contracts he has entered into and whose meaning has become doubtful to him, but the Declaratory Judgment Act was never intended to drive the courts into these limitless fields of advisory judgments. The later Act of April 25, 1935, P. L. 72, was clearly not intended to force courts into that field, which they refused to enter under the Act of June 18, 1923, P. L. 840. The Act of 1923 uses language which, like that in the Act of 1935, might be construed by some as warranting what plaintiff asks for, but the decisions and opinions of this court make it plain that we cannot constitutionally enter the field of advisory opinion no matter how broad the language of the statutory invitation may superficially seem to be. The Act of 1923, sec. 2, says: "Any person interested under a deed, will, written contract . . . or whose rights, status, or other legal relations are affected by a statute . . . contract, or franchises may have determined any question of construction or validity under the instrument . . . and obtain a declaration of rights, status or other legal relations thereunder." Plaintiff can plausibly argue that she is a "person interested under a contract" and that her "rights or status are affected by that contract" and that therefore she is entitled under the Act of 1923 to have from this court "a declaration as to her rights or status under that contract" but the answer to that argument is found inKariher's Petition, supra, and numerous other decisions of this court. The argument that plaintiff 'is entitled to a judicial declaration as to her rights under the Act of 1935 also readily admits of an answer. First of all, there is no "actualcontroversy" existing between this plaintiff and the respondent, when we give to the word "controversy" its legal and proper meaning. There is existing between these parties adifference of opinion as to the import of their contract but this difference does not rise to the dignity of a legalcontroversy any more than do thousands of other similar differences of opinion as to the import of contracts. There is no certainty that the "difference of opinion" here existing will ever ripen into a legal controversy. Second, there are here present no "antagonistic claims" between the parties "which indicate imminent and inevitable litigation". There is no chance whatever for litigation between these parties over this contract while both are alive, and if the husband dies before the wife or if the wife dies before the husband and leaves no personal estate, there can be no litigation of any kind over this contract. There is therefore no warrant whatever for the claim that litigation over this contract is "imminent and inevitable".

Anderson on Declaratory Judgments on page 172 says: "Under the declaratory judgment law, a former wife is not entitled to a declaration of rights under a contract, assignment, and transfer relating to the former husband's interest in land on the ground it was necessary to protect the rights of herself and minor child in the event the husband should, at some future time, default in alimony payments, there was no necessity formaking such a declaration based upon such a remote future contingency" [italics supplied]. Citing the following case,Merkley v. Merkley et al., 86 P.2d 89, 91, 12 Cal. 2d 543, the Supreme Court of California said: ". . . the situation has not developed which would require a construction of any instrument introduced in evidence and relied on by the plaintiff. There is no more than a conjecture or supposition on her part that at some time in the future a controversy mayarise where-in she might become interested in having adjudicated the defendant Alan Merkley's interest under those documents. The facts in the record present an academic question only. The courts will not exercise the discretionary power to declare rights which do not give rise to a present controversy."

In Malick's Petition, 133 Pa. Super. 53, 59, 60, the Superior Court of Pennsylvania refused to enter a declaratory judgment, saying in the opinion of Judge CUNNINGHAM: "What the intervenor really sought, . . . was, in effect, a declaratory judgment or adjudication of her possible rights in the future. . . ." In Corken v. Workman, 231 Mo. App. 121,98 S.W.2d 153, the Appellate Court of Missouri said: "Lapse of time may create conditions which may cause controversy involved in case to become mere moot question which courts will not decide." InAllison v. Sharp, 209 N.C. 477, 184 S.E. 27, the Supreme Court of North Carolina said: "Action is not maintainable under this Declaratory Judgment Act for determination of theoretical problem or moot questions".

Nor is there any ground for the court to be satisfied that either party to this bill for a declaratory judgment "asserts a legal relation, status, right or privilege in which he has a concrete interest" denied by the other who "has or asserts a concrete interest therein" (quoting from the Act of 1935, P. L. 72). There is nothing "concrete" about an interest such as the husband here asserts, an interest which though the ante-nuptial contract should be interpreted as he contends, will be totally without value to him except under two contingencies which may never arise, to wit: The wife shall predecease him and, second, she shall leave a personal estate. The best test of thelack of "concretenes" in the husband's claim (even under his own interpretation of the contract) would be for him to attempt to sell that claim in the market place and see how little it would bring. Anyone buying it would be buying not something ofconcrete value but something of a purely speculative anddoubtful value. The adjective concrete is defined in Webster's New International Dictionary, 2 ed. as "characterized by immediate experience of realities, belonging to actual things or events, real, not abstract." The noun "concrete" is defined as "opposed to in the abstract." "In the abtract" is defined as "with reference to theoretical considerations only, apart from practical or actual conditions". In the light of these definitions it is clear that the husband is claiming something not concrete but abstract. His interest in the ante-nuptial contract will become concrete, i. e., substantial, only under actual conditions which do not now exist and which may never exist.

This is precisely the view Judge GEST of the Orphans' Court of Philadelphia took in the case of Straus' Estate, 307 Pa. 454,457, 458, 161 A. 547, in which this court affirmed the refusal of the court below to render a declaratory judgment. This affirmation was on Judge GEST'S opinion in which he said, inter alia: "The Declaratory Judgment Act can only be invoked where a real controversy exists: Lyman v. Lyman, 293 Pa. 490;Sterrett's Est., 300 Pa. 116, and Cryan's Est., 301 Pa. 386, and the court will not decide future rights in anticipation of the event at which such future rights call for decision: Ladnerv. Siegel, 294 Pa. 368. . . . Doubtless it would be more convenient for the executors to have us construe the will in advance, but this is by no means an adequate reason."

In Bunnell v. Gordon, 20 O. R. 281, the High Court of Justice of Ontario affirmed a refusal of the court below to entertain a petition seeking a declaration that plaintiff was entitled to an inchoate right of dower in certain lands. In re Lockyer [1934], 1 Dall. L. R. 687, in dismissing a charity's petition for a declaration that it was entitled to a share of the remainder under a will bequeathing income to testator's daughter for life and the principal after payment of her debts and funeral expenses to named charities, the Chief Justice of Ontario said (p. 688): "Such debts and funeral expenses may exhaust the whole fund in which event the charities take nothing. . . . The Court should not now entertain what may prove to be purely an academic question. . . . Appellant points to no special circumstances warranting an immediate decision, other than the necessity of making two wills, a hardship hardly meriting our assistance, and no present rights depend on the declaration,because she is now in no way restricted in the management andinter vivos disposition of her personal estate" (italics supplied). The excerpt we italicize perfectly expresses the situation in the case now before us.

The language of Mr. Justice LINN in reversing inCarwithen's Est., 327 Pa. 490, the action of the Orphans' Court of Philadelphia County which had entered a declaratory judgment, can be used with appropriateness in disposing of the case now before us: "There is no actual controversy; there may be one some day" if the plaintiff predeceases her husband, leaves a personal estate and does not will him an interest in that estate equal to what the intestate laws would give. "The circumstances" existing at the time of plaintiff's death "cannot be anticipated and without them there is no 'actual controversy' on the point; the record [now before us] does not present antagonistic claims indicating 'imminent and inevitable litigation'. The parties may differ on what the ante-nuptial agreement means but that is not enough to support the declaration" the plaintiff asked for and which the court below refused.

Appellant's paper book quotes the following from Borchard on Declaratory Judgments, 2nd ed., p. 414: "Security in legal relations is desirable" and "the need for certainty as to prospective rights and duties has long been felt". These express commendable ideals of doubtful attainability, which it is certainly impracticable to attain through the medium of declaratory judgments.^* Borchard in these words just quoted obviously did not mean to advocate the use of declaratory judgments in cases like this, for in the very same paragraph he says: "Planning for the future requires the opportunity to ascertain and to determine the effect of relations and eventscertain or practically certain to arise in the future" [italics supplied]. That this plaintiff will predecease her husband or that if she does predecease him she will leave a personal estate, are not events "certain or practically certain to arise in the future". Borchard also says (pp. 34 and 35): "Expediency and a desire not to function in the abstract, but to decide only concrete contested issues conclusively affecting adversary parties in interest, have induced a refusal to render advisory opinions or decide moot cases. . . . Actions or opinions are described as 'moot' when they are or have become fictitious, colorable, hypothetical, academic or dead. The distinguishing characteristic of such issues is that they involve no actual, genuine, live controversy, the decision of which can definitely affect existing legal relations."

The Supreme Court of North Carolina aptly declared: "The Uniform Declaratory Judgments Act 'does not extend to the submission of a theoretical problem or a "mere abstraction". It is no part of the function of the courts, in the exercise of the 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' ":Poore v. Poore (1931), 201 N.C. 791, 161 S.E. 532.

The interest here asserted by the husband and which caused the wife to file the petition before us is abstract, notconcrete; we have on this record a difference of opinion but nocontroversy rating judicial recognition; the facts are not "sufficiently proximate and ripe" to place the adversaries "in gear" (as Borchard on p. 50 phrases it). The question posed is academic and its answer will have no practical legal result; the judgment asked for would not affect in the slightest degree the wife's lifetime rights in her personal property; neither she nor her property are thrown into danger or jeopardy by her denial of her husband's present interpretation of an ante-nuptial contract which he may never have occasion to attempt to enforce, and it is only when a party is "thrown into jeopardy and danger by the threat or attack" that he or she has a sufficient legal interest to obtain a declaratory judgment (see Borchard p. 280); the "issue" is framed on facts not nowexisting and which may never exist and it is elementary that a declaratory judgment must deal with a real dispute over real facts; here there is no threat of "imminent and inevitable" litigation between parties; all the "facts" pleaded as a ground for this declaratory judgment are hypothetical and courts never determine the rights of parties on a state of facts which have not yet and may never come into being; the "case" before us is a perfect example of a moot case and should be judicially dealt with accordingly.

I would affirm the decree of the court below.

Mr. Justice PATTERSON concurs in this opinion.

^* Some years ago certain persons urged that the Supreme Court of the United States be required to advise Congress in advance as to the constitutionality of pending legislation, but the proposal to make the Supreme Court a professional adviser to Congress was so strongly condemned by jurists and lawyers that little or nothing has since been heard of it.

In 1793 the then Chief Executive of the United States formally requested the Supreme Court of the United States to advise him on twenty-nine questions relating to international law. After duly considering the request for about one month the judges of the United States Supreme Court "decline to give their opinion on these questions of law . . . with great firmness, though with due deference": Warren's "Supreme Court in United States History", Vol 1, pages 109, 110.