189 Iowa 178 | Iowa | 1920
At the outset, appellee urges upon us that the appellant has no right to maintain an action to construe said will. Assuming, for the purposes of present discussion, that appellees have not waived the right to make this objection, we think that the objection is valid. It was squarely held, in Higgins v. Downs, 101 App. Div. 119 (91 N. Y. Supp. 937), that adjudgment creditor of a beneficiary cannot sue to determine the estate of the beneficiary. Speaking to the giving construction to a doubtful or disputed clause in a will, Mr. Pomeroy, in the third volume of his work on .Equity Jurisprudence (3d Ed.), says (page 2301) :
“In accordance with this doctrine, which regards a trust, express or implied, as essential to the jurisdiction, it necessarily follows that the suit can only be maintained by some party directly interested in the trust under the will; that is, by an executor or a trustee, or bjr a cestui que trust, or a legatee; it cannot be maintained by an heir at law, or a devisee of a mere legal title, and much less by a creditor.”
For this text, a very large number of cases are cited by the author. It was ruled, in Clark v. Carter, 200 Mo. 515 (98 S. W. 594), that a purchaser of land from an executrix cannot proceed to have a will construed. We held, in De