Herring v. . Herring

AlleN, J. The Revisal, sec. 808, “Does not confer upon certain parties who differ as to their rights to propound to the Court on a case agreed interrogatories in respect thereto; . . . the purpose is simply to dispense with the formalities of a summons, complaint, and answer, and upon an agreed state of facts to submit the case to the Court for decision.” McKethan v. Ray, 71 N. C., 170. “The law does not confer upon parties who differ as to the law of their case the right to propound interrogatories to the- Court, on a case agreed, in respect thereto.” Rogerson v. Lumber Co., 136 N. C., 269. Nor has a court of equity a general jurisdiction of the construction of wills, and it will not entertain actions or proceedings merely for the purpose of settling disputes between legatees and devisees. The principle controlling the Courts is stated by Ashe, J., in Little v. Thorne, 93 N. C., 71, as follows: “The action seems to be predicated upon the general idea that a court of equity has a sweeping jurisdiction in reference to the construction of wills, which Chief Justice Pearson,said, in the case of Tayloe v. Bond, Busb. Eq., 5, was an erroneous idea. In that case the learned judge, in his well considered opinion, has given a very clear exposition of the jurisdiction of a court of equity, in the construction of wills, and from it we deduct the following rule as established: That the jurisdiction in matters of construction is limited to such as are necessary for the present action of the court, and upon which it may enter a decree or direction in the nature of a decree. It will never give an abstract opinion upon the construction of a will, nor give advice, except when its present action is involved- in respect to, something to be done under its decree. That it will not entertain an action for the construction of a devise, for the rights of devisees are purely legal, and must be adjudged by the *168 courts of law. Tbe only exception to tbis is where a case is properly in a court of equity, under some of tbe known and tbe accustomed beads of jurisdiction, and a question of construction incidentally arises, the Court will determine it, it being necessary to do so in order to decide tbe cause — as, for instance, in actions for partition, or for tbe recovery of legacies where devises and legacies are so blended and dependent on each other as to make it necessary to construe tbe whole, in order to ascertain tbe legacies; because the Court having jurisdiction over legacies must take jurisdiction over all matters necessary to its exercise. “Tbe advisory jurisdiction of tbe Court is primarily confined to trusts and trustees, Alsbrook v. Reid, 89 N. C., 151, and cases there cited. Hence, the Court will advise executors who ar^ regarded as trustees, as to tbe discharge of tbe trusts with which they are clothed, and as incident thereto, the construction and legal effect of the instrument by which they are created, when a case is presented where the action of the court is invoked as distinguished from an abstract opinion. Simpson v. Wallace, 83 N. C., 477; Tayloe v. Bond, supra. But in the latter case it is said there is no ground upon which to base a jurisdiction, to give advice to an executor in regard to his future conduct or future rights, or to allow him to ‘ask the opinion of the Court as to the future rights of a legatee/ as, for instance, ‘'Who will be entitled when a life estate expires V But the advice is only given, upon an existing state of facts, upon which a decree or some direction of the Court in nature of a decree is solicited.” This doctrine, in its entirety, is approved in Reid v. Alexander, 170 N. C., 303, and in both cases the actions were dismissed, and following these and other precedents the same course must be taken with this proceeding. There is one feature of the present proceeding particularly objectionable, and that as it appears in the agreed statement that “It is expressly stipulated by the said Mary C. Herring, widow, that her joinder herein shall in no manner affect or prejudice her right to dissent from said will as provided by law, or be construed as an election on her part to take under said will, which stipulation is hereby expressly ratified and assented to by all the other parties hereto.” In other words, the widow, who is interested in six of the questions propounded, says to the Court that she will abide the result if the decision accords with her contentions, but if not, she will dissent and destroy the effect of the judgment of the Court. Proceeding dismissed.