Corry v. Fleming

Welch, C. J. We think the court erred in overruling the demurrer to this petition. It makes no case for eliciting the opinion of the court upon the construction of the will. It is only in cases where a trust is involved, or where the duty of an executor, administrator, or other trustee is of uncertain nature, requiring the guidance or direction of the court, that the court can be called upon merely to give its opinion as to the true construction of a will. The plaintiffs do not state that they are in possession of the lot, and ask to have the title quieted. They do not complain that they are kept out of possession, and ask to recover the lot. Nor do they even aver that the lot is a part of the residuum of the estate — that is, that there is enough without this lot to satisfy the legacies.' They make no case for any relief, beyond the mere opinion of the court, and they pray for nothing but that opinion. If they are right in their theory of the proper construction •of the will, they make a case, as between themselves and one-of the defendants, for partition of the premises; but they do not ask for partition. The petition simply sets forth a copy of the will, and asks the opinion of the court .as to its effect upon this after-acquired property. The- judgment, must be reversed, the demurrer to the petition sustained, and the cause remanded for further pro..ceeding. Judgment accordingly.