Gregory v. Godfrey

DeNNY, J.

This cause was heard by the court below without a jury, by agreement of the parties, upon the pleadings, the evidence offered, and the stipulations.

G.S. 1-253 of the Uniform Declaratory Judgment Act reads as follows: “Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree.”

G.S. 1-254 of said Act is as follows: “Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance,, contract or franchise, and obtain a declaration of rights, status, or other legal relations thereunder. A contract may be construed either before or after there has been a breach thereof.”

In view of the conflicting construction placed on Item 4 of the will of Bettie F. Tillitt as set out in the pleadings, and in the light of the above provisions contained in our Declaratory Judgment Act, we are constrained to uphold the ruling of the court below in overruling the respondents’ motion to dismiss,on the ground that the question presented by the petitioner was moot. Trust Co. v. Green, 238 N.C. 339, 78 S.E. 2d 174; Woodard v. Clark, 234 N.C. 215, 66 S.E. 2d 888.

The question presented on this appeal is purely a legal one. If Gideon Tillitt Godfrey at the time of her death is survived by a child or other lineal descendants, such child or other lineal descendants will take in fee the one-fourth undivided interest in which she held a life estate prior to the death of her sister, Bess Tillitt Gregory. Bunting v. Cobb, 234 N.C. 132, 66 S.E. 2d 661. The other one-fourth interest in which she holds a life estate as the last survivor of the five children of Bettie F. Tillitt, under the terms of the will, the fee simple title to this one-fourth interest will vest per stirpes in the descendants of Bettie F. Tillitt or their assigns.

On the other hand, if Gideon Tillitt Godfrey should die without leaving a child or other lineal descendants, then in that event the entire remainder of the one-half undivided interest in which she holds a life estate, under the terms of Item 4 of the will of Bettie F. Tillitt, will vest in fee simple per stirpes in the descendants of Bettie F. Tillitt or their assigns.

Except as modified, the judgment below will be upheld.

Modified and affirmed.