{
  "id": 8607764,
  "name": "ROBERT A. COLLIER, Executor of the Last Will and Testament of R. W. MILLS, v. ELIZABETH MILLS, EUGENE F. MILLS, MRS. LILLIAN M. RAPE, MILDRED M. EVANS, MARY FRANK W. GILLELAND and IDA BELL M. WALKER",
  "name_abbreviation": "Collier v. Mills",
  "decision_date": "1956-12-12",
  "docket_number": "",
  "first_page": "200",
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      "cite": "240 N.C. 249",
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      "cite": "243 N.C. 469",
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  "last_updated": "2023-07-14T14:55:29.608424+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "JOHNSON, J., not sitting."
    ],
    "parties": [
      "ROBERT A. COLLIER, Executor of the Last Will and Testament of R. W. MILLS, v. ELIZABETH MILLS, EUGENE F. MILLS, MRS. LILLIAN M. RAPE, MILDRED M. EVANS, MARY FRANK W. GILLELAND and IDA BELL M. WALKER."
    ],
    "opinions": [
      {
        "text": "Bobbitt, J.\nWhen the petition for writ of certiorari was allowed, this in effect granted to petitioners the right of immediate appeal from the order of 6 September, 1956. In perfecting such appeal, Rules of Practice in the Supreme Court, 221 N.C. 544, apply.\nThe 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\u2019 motion and in entering an order thereon.\nWhen 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\u2019 further answer.\nThe court made no construction or interpretation of the will.\nThe admissibility of evidence as to \u201ccircumstances attendant\u201d 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.\nThe question now presented concerns allegations, not evidence. In this connection, it appears that certain of the alleged facts relate to \u201ccircumstances attendant\u201d when the will was made, referring \u201cto the relationships between the testator and the beneficiaries named in the will, and the condition, nature and extent of his property.\u201d 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.\nIt is settled that, in the absence of stipulation, \u201cthe circumstances attendant\u201d are to be established by findings of fact made by the court on competent evidence presented to it. Trust Co. v. Wolfe, supra.\nThe 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.\nHere 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.\nA 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 \u201ccircumstances attendant\u201d 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.\nWhen 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 \u201ccircumstances attendant\u201d 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.\nAfter 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.\nA 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 \u201ccircumstances attendant\u201d and their significance, if any.\nWe 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.\nWhether the findings of fact made by the Superior Court judge are based on competent\u2019 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.\nOur 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.\nNothing 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.\nError and remanded.\nJOHNSON, J., not sitting.",
        "type": "majority",
        "author": "Bobbitt, J."
      }
    ],
    "attorneys": [
      "Raymer & Raymer for defendants Elizabeth Mills, Mildred M. Evans, and Ida Bell M. Walker, appellants.",
      "R. A. Hedrick and Adams, Dearman & Winberry for defendants Eugene F. Mills, Mrs. Lillian M. Rape and Mrs. Mary Frank M. Gille-land, appellees."
    ],
    "corrections": "",
    "head_matter": "ROBERT A. COLLIER, Executor of the Last Will and Testament of R. W. MILLS, v. ELIZABETH MILLS, EUGENE F. MILLS, MRS. LILLIAN M. RAPE, MILDRED M. EVANS, MARY FRANK W. GILLELAND and IDA BELL M. WALKER.\n(Filed 12 December, 1956.)\n1. Appeal and Error \u00a7 3\u2014\n\u25a0 The, granting of a petition for writ of certiorari to review order of the trial court striking certain allegations of a pleading, in effect grants petitioners the right of immediate appeal, in perfection <of which the Rules of Practice in the Supreme Court apply.\n2. Appeal and Error \u00a7 16\u2014\nWhere certiorari is allowed to review order of the trial court striking certain allegations from a pleading, the petition for certiorari is -in effect an assignment \u00f3f error directed to the entire order and is sufficient to present for review tlie question whether the lower court was in error in hearing ,the motion and entering the order thereon.\n3. Wills \u00a7 39\u2014\nIn an action to obtain construction of a will, the admissibility of evidence as to circumstances attendant when the will was made, to enlighten the court in ascertaining the intent of .testator as expressed in the instrument, is to be determined by the court. Therefore, the court should be free to make decision as to the competency of such evidence when offered, unimpeded by any prior rulings striking allegations relating to the circumstances attendant.\n4. Pleadings \u00a7 31\u2014\nCJ.S. 1-153 does not apply to a motion to strike allegations from a pleading which relate solely to questions of fact addressed to the court.\n5. Appeal and Error \u00a7 1\u2014\nA matter which has not been ruled upon in the lower court is not presented for decision in the Supreme Court.\nJohnsoN, J., not sitting.\nON writ of certiorari to review order of Phillips, J., entered at August Term, 1956, of Ieedell.\nAction for declaratory judgment brought by executor for construction of the will of R. W. Mills, deceased, and for instructions in the administration of the estate.\nTestator, a resident of Iredell County, died 12 January, 1955. His will, executed 24 December, 1949, was duly probated. Plaintiff qualified and is now acting as executor.\nThe six defendants, children of the testator, are the only legatees and devisees.\nA list of property, alleged to be that owned by R. W. Mills at the time of his death, is attached to the complaint. Included therein are these items: (1) \u201c200 shares of Dividend stock in Home Building & Loan Association $20,000.00.\u201d (2) \u201cNote of Aaron Baker & wife for $4,200.00 dated Feb. 20, 1951, with interest paid to Dec. 11, 1954.\u201d (3) \u201cNote of David Scott, principal balance $60.00 & interest.\u201d\nPlaintiff alleged that a controversy exists between defendants \u201cas to the disposition of the notes, mortgages and Home Building & Loan stock enumerated in the inventory.\u201d (In said list of property, the word \u201cmortgage (s)\u201d does not appear. Presumably, the Baker and Scott notes are secured by mortgages.)\nPlaintiff alleged further that the controversy arises from contradictory interpretations placed on the second and fourth items of the will which, in pertinent part, provide:\n\u201cItem 2: I give, devise and bequeath unto my daughter, Elizabeth Mills in fee simple and forever all of my household and kitchen furniture, my family automobile, all cash, money in bank and bonds that I own at my death, after payment of my funeral expenses and costs of paying my debts and settlement of my estate, and also the house and lot situated on the East side of the Boulevard ...\u201d\n\u201cItem 4: My executor, hereinafter named, shall convert all the rest and remainder of my property, real and personal, into cash and I give, devise and bequeath the same when so converted equally, share and share alike unto my six children, Eugene, Elizabeth, Lillian, Mildred, Ida Bell and Mary Frank, to be theirs absolutely and forever. )>\nA joint answer was filed by defendants Elizabeth Mills, Mildred M. Evans and Ida Bell M. Walker. After admitting plaintiff\u2019s allegations of fact, they asserted their contention that the said items in controversy passed to Elizabeth Mills under Item 2. Further answering, \u201cand by way of Gross ActioN for affirmative relief,\u201d they alleged, in eleven numbered paragraphs, facts concerning the testator's relationships to his children, especially defendant Elizabeth Mills, and concerning the testator\u2019s property when the will was made and thereafter until his death.\nDefendants Eugene F. Mills, Lillian M. Rape and Mary Frank W. Gilleland did not answer. In lieu thereof, they moved to strike paragraphs 3, 4, 5 and 10 from said further answer of their codefendants. They asserted, as the basis for their motion, these grounds: (1) The facts alleged have no legal bearing upon a proper construction of said will; (2) evidence in support of said allegations would be incompetent; (3) movants would be prejudiced if said irrelevant, immaterial and improper allegations were allowed to remain in said further answer.\nThe hearing before Judge Phillips was on said motion to strike. Allowing the motion, he entered an order on 6 September, 1956, striking paragraph 3, 4, 5 and 10 from said further answer. The answering defendants excepted and gave notice of appeal.\nIn apt time, the answering defendants filed a petition in this Court for a writ of certiorari under Rule 4(a), 242 N.C. 766, for immediate review of said order of 6 September, 1956, which petition was allowed by this Court.\nRaymer & Raymer for defendants Elizabeth Mills, Mildred M. Evans, and Ida Bell M. Walker, appellants.\nR. A. Hedrick and Adams, Dearman & Winberry for defendants Eugene F. Mills, Mrs. Lillian M. Rape and Mrs. Mary Frank M. Gille-land, appellees."
  },
  "file_name": "0200-01",
  "first_page_order": 238,
  "last_page_order": 242
}