Alsbrook v. . Reid
89 N.C. 151
N.C.
1883
Check Treatment
*153 Ashe, J.

The proceeding in this case was instituted ostensibly for the purpose of procuring a sale of land for partition among the heirs of David Alsbrook, but the case comes before ■us in a very questionable shape. It is not alleged in the complaint that the parties are tenants in common, nor that any of them are in possession of the land; and there is no description ■of any land which is sought to be sold; and these are matters necessary to be set forth in every petition for partition — whether to be divided or to be sold for the purpose of partition. Thomas v. Garvan, 4 Dev., 223; Ledbetter v. Gash, 8 Ired., 462.

These defects' would be fatal to the jurisdiction, even if the clerk had jurisdiction. But the proceeding is evidently undertaken to obtain a construction of the will of David Alsbrook, and thereby have the legal rights of the parties ascertained, without resorting to the less speedy and more expensive remedy provided by law for the determination of such rights. The clerk clearly had no jurisdiction of the case, as presented by the record.

Under the former system, the courts of law and equity had concurrent jurisdiction in cases of partition; but whenever a •sale was found to be necessary to effect a just and equitable partition, advancing the interests of the parties, the courts of equity had exclusive jurisdiction. By the act of 1868-’69 (Bat. Rev., ch. 84, §13) this jurisdiction was conferred upon the superior courts, and they "were invested in this particular with the same powers as had been possessed and exercised by the courts of equity. But the courts of equity, themselves, had no such jurisdiction as that assumed and exercised by the clerk of the superior court in this case.

The former courts of equity entertained, and our superior courts still entertain applications for advice and instructions from executors and other trustees, as to the discharge of trusts confided to them, and incidentally thereto, the construction and legal effect of the instrument by which they are created. But the courts of equity never exercised this advisory jurisdiction when *154 the estate devised is a legal one, and the question as to construction is purely legal. The jurisdiction is incident to that over trusts. Where there is no trust or trustee to be directed, the court of equity never takes jurisdiction. Bailey v. Biggs, 56 N. Y., 407; Simpson v. Wallace, 83 N. C., 477; Simmons v. Hendricks, 8 Ired. Eq., 84; Tayloe v. Bond, Busb. Eq., 5; Alexander v. Alexander, 6 Ired. Eq., 229; where it is held: “ When the estate devised is a legal one, and the question of construction disputed between the parties is a legal one, a bill for partition of land will not lie, nor can such a bill be sustained which states a legal controversy between the plaintiffs and defendants; and that the bill should allege a seizin or possession in the defendants and plaintiffs themselves.” This decision is appositely applicable to our case. Here, the estate devised is a legal one, and the question of construction disputed between the parties, not only between the plaintiffs and defendants, but between the plaintiffs themselves; and there is no seizin or possession alleged in the parties, and we may add, no trust or trustee to be directed.

The proceeding cannot be maintained and must be dismissed.

Error. Dismissed.