Little v. . Thorne , 93 N.C. 69 ( 1885 )

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, 45 N.C. 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 (72) an action for the construction of a devise, for the rights of devises are purely legal, and must be adjudged by the courts of law. The only exception to this is where a case is properly in a court of equity, under some of the known and the accustomed heads of jurisdiction, and a question of construction incidentally arises, the Court will determine it, is being necessary to do so in order to decide the cause, as, for instance, in actions for partition or for the recovery of legacies where devises and legacies are so blended and dependent on each other as to make it necessary to construe the whole, in order to ascertain the legacies, because the Court, having jurisdiction over legacies, must take jurisdiction over all matters necessary to its exercise.

The advisory jurisdiction of the 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 are regarded as trustees as to the discharge of the 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?" 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.

In the case presented by the appeal for our consideration the executor does not invoke the aid of the court with respect to any of his duties arising under the will of the testator, but the action is constituted by some of the legatees and devises under the will against others, for the abstract opinion of the Court, with regard to their several rights under the will. The executor is made a party, pro forma, after the institution of the action, and he who is a trustee, and is the only (73) party to the action who could ask the aid of the Court, asks nothing. And then there are no pleadings in the case, no complaint no answer, no order, or decree asked; nothing but a summons and a caseagreed between parties, who have never been recognized as persons who might invoke the advisory aid of the Court. It is a case of the first impression, and is not authorized by any decision or dictum of any court that we are aware of.

The action is therefore dismissed, and each party will pay his own costs.

Error. Appeal dismissed.

Cited: Tyson v. Tyson, 100 N.C. 368; Farthing v. Carrington,116 N.C. 325; Balsley v. Balsley, ibid., 476; Rogerson v. Lumber Co.,136 N.C. 269; Heptinstall v. Newsome, 146 N.C. 504;Reid v. Alexander, 170 N.C. 303; Herring v. Herring,180 N.C. 167; Trust Co. v. Lentz, 196 N.C. 404;London v. Pelchenan, 198 N.C. 227.