Donovan v. Mahoney

45 App. D.C. 480 | D.C. Cir. | 1916

Mr. Justice Van Orsdel

delivered the opinion of the Court:

At the outset we are confronted with the important question of the right of plaintiff to maintain this action. The suit here is to cancel the deeds and remove an alleged cloud from plaintiff’s title. It is elementary that before he is entitled to be heard his own title must be undisputed. But it is questioned by the admitted facts of this record. The fifth paragraph of the will raises a very serious question as to whether there was' not a testamentary devise of the real estate to the grantees in the deeds. This question involving a construction of the will, has not been raised in the present suit, and, indeed, it cannot be. “A careful examination of the adjudged eases leads to the conclusion that the doctrine in harmony with principle and sustained by the weight of authority is that equity will not assume jurisdiction to construe wills except as an incident of the general jurisdiction over trusts; and that heirs at law and devisees who claim a mere legal estate will not be allowed to come into a court of equity for the sole purpose of obtaining a construction of a will, but must assert their title by legal action, or, if in possession, await an attack by hostile claimants.” Jordan v. O’Brien, 33 App. D. C. 189.

It appears that the will has not been probated, but is held up in the probate court awaiting the determination of a caveat filed by plaintiff. If the will should be held invalid, then will plaintiff, as sole heir of William L. Mahoney, be in position to question the validity of the deeds. If, however, the will should be sustained, then the coiistruction of paragraph five mustt be had to ascertain whether the real estate passed to the grantees in the deeds by testamentary devise. If it did, the present issue becomes unimportant; if it did not, then, and not until then, will plaintiff be in position to assert such title as would give him standing to assail the validity of the deeds. It is clear that this action is not only premature, but that plaintiff has at present no such interest in the property in issue as to enable him to maintain this suit.

The decree is reversed with costs, and the cause remanded with instructions to dismiss the bill without prejudice to the right of plaintiff to institute further proceedings in the event his title as sole heir of William L. Mahoney may be established.

Reversed and remanded.