Heptinstall v. . Newsom

Be.owN, J. Tbis appears to be an action brought by tbe plaintiff, one of tbe devisees of tbe testator, against such of tbe other devisees as are in esse, for tbe purpose of obtaining a construction of tbe will as to tbe devisees of real estate, and to determine what estates some of tbe devisees take. While we readily concur in tbe correctness of tbe decree of tbe learned Judge construing tbe will in all its parts, we cannot recognize tbe regularity of tbis proceeding nor tbe jurisdiction of tbe court to entertain it. It seems to be predicated upon tbe idea that a court of equity has a sweeping jurisdiction in reference to tbe construction of a will, which, under tbe authorities, is an erroneous one. Tyson v. Tyson, 100 N. C., 368; Cozart v. Lyon, 91 N. C., 282. Tbe jurisdiction in matters of construction is limited to such as are necessary to tbe present action of tbe court. Tbe court will not undertake to construe a devise in a proceeding of tbis character, for tbe rights of devisees are purely legal and must be adjudged when a cause of action arises. Tbe advisory jurisdiction of courts of equity is primarily confined to trusts and trustees, which include executors, as far as their rights, powers and duties under tbe will are concerned. Alsbrook v. Reid, 89 N. C., 151; Little v. Thorne, 93 N. C., 69. As is said by Judge Pearson, in Taylor v. Bond, 45 N. C., 16: “We can see no ground upon which to base a jurisdiction to allow executors to ask tbe opinion of the court as to .the future rights of a legatee; for instance, ‘Who will be entitled when a life estate expires V ‘When property is given to one for life, with a limitation over, does tbe first taker have tbe entire interest by tbe rule in Shelly’s case f or, ‘What would be tbe consequence of a supposed state of facts that may hereafter arise V True, these are matters of construction, but tbe questions cannot now *505 be presented so as to be settled by a decree. A declaration of opinion would be merely in tbe abstract until existing rights come in conflict, so as to give tbe court a subject to act on.” We were inclined to think that the jurisdiction might be founded upon a liberal construction of the act of 1893 (Ee-visal, sec. 1589), but, upon consideration, we find it cannot. It is not an action brought by the plaintiff, John 0. Tleptin-stall, against some person claiming an estate or interest in the tract devised to him, but is evidently a proceeding brought in the interest of the several devisees of parcels of land to settle and determine all their respective rights arising under the will in ‘presentí and in futuro, in which the executors, as such, have no interest. The action and the appeal are Dismissed.