Collier v. Mills

Bobbitt, J. When the petition for writ of certiorari was allowed, this in effect granted to petitioners the right of immediate appeal from *203 the order of 6 September, 1956. In perfecting such appeal, Rules of Practice in the Supreme Court, 221 N.C. 544, apply. The record before us contains no assignment of error. Even so, it shows that exception was taken to the order of 6 September, 1956; and the petition for certiorari was in effect an assignment of error directed to the entire order. This suffices to bring before this Court for review the question as to whether the court below was in error in entertaining-appellees’ motion and in entering an order thereon. When the cause was before Judge Phillips, the pleadings were incomplete. Appellees had not answered the complaint. The hearing related solely to their motion to strike the designated allegations in appellants’ further answer. The court made no construction or interpretation of the will. The admissibility of evidence as to “circumstances attendant” when the will was made, to enlighten the court in its task of ascertaining the intent of the testator as expressed in the will, is discussed fully in Trust Co. v. Wolfe, 243 N.C. 469, 91 S.E. 2d 246. The question now presented concerns allegations, not evidence. In this connection, it appears that certain of the alleged facts relate to “circumstances attendant” when the will was made, referring “to the relationships between the testator and the beneficiaries named in the will, and the condition, nature and extent of his property.” Trust Co. v. Wolfe, supra. However, on this appeal, we do not undertake to mark out which of the alleged facts, if any, are or may be relevant to a proper construction or interpretation of the will. It is settled that, in the absence of stipulation, “the circumstances attendant” are to be established by findings of fact made by the court on competent evidence presented to it. Trust Co. v. Wolfe, supra. The rules applicable upon consideration of a motion to strike made under G.S. 1-153 are grouped and restated by Johnson, J., in Daniel v. Gardner, 240 N.C. 249, 81 S.E. 2d 660. In the cases cited, the pleadings raised issues of fact for determination by a jury. Here the situation is different. The challenged allegations, if controverted, raise questions of fact for determination by the court. Issues of fact, for determination by a jury, are not involved. A party may be prejudiced before a jury when irrelevant and redundant allegations, or allegations of incompetent matters, are read in the hearing of the jury. When challenged allegations are stricken, they are withheld from the ears of the jurors but not from the eyes of the judge. In hearing a motion to strike, the court must read the challenged allegations and consider argument relating thereto; and, whether the motion is allowed or disallowed, the court becomes fully aware of the alleged facts. And when the ultimate question, to wit, the construction or interpretation of the will in the light of the “circumstances *204 attendant” when the will was made, is presented to another Superior Court judge for decision, he, too, upon his inspection of the court file, becomes fully aware of all alleged facts theretofore stricken. When the cause comes on for hearing on said ultimate question, the Superior Court judge then presiding should be free to make his own decisions as to what alleged facts, if any, constitute “circumstances attendant” as well as the significance, if any, thereof. He should be free to make such decision, when evidence of the alleged facts is offered, unimpeded by prior rulings relating solely to allegations. After the order of 6 September, 1956, was entered, appellees filed an answer in which they alleged factual matters. If a motion to strike may be entertained, no doubt appellants will address such a motion to designated allegations made by appellees. In such event, before the cause comes on for hearing on said ultimate question, there would be at least two preliminary hearings relating solely to allegations. A series of hearings before successive Superior Court judges relating solely to allegations, apart from the element of delay, would serve no useful purpose. Reason and experience impel the conclusion that the Superior Court judge who passes on the ultimate question, after all pleadings have been filed, should determine what are relevant “circumstances attendant” and their significance, if any. We are constrained to hold that the legislative intent expressed in G.S. 1-153 has no application when the challenged allegations relate solely to questions of fact addressed to, the court. See: Gallimore v. Highway Commission, 241 N.C. 350, 85 S.E. 2d 392; Woody v. Barnett, 235 N.C. 73, 68 S.E. 2d 810. Whether the findings of fact made by the Superior Court judge are based on competent’ evidence, and whether the facts found have any significant bearing on the proper construction or interpretation of the will, are subject to review by this Court. Our conclusion is that the motion to strike was improvidently made and that the court was in error in entertaining the motion and in ruling thereon. Hence, the order is vacated and the cause remanded for further proceedings consistent herewith. Nothing herein should be considered as an intimation of opinion as to the proper construction or interpretation of the will. No ruling thereon has been made by a Superior Court judge and the matter is not before us on this appeal. Trust Co. v. Wolfe, supra. Error and remanded. JOHNSON, J., not sitting.