Head v. PhillipsHead v. Phillips
- Reporters:
- , ,
- Before:
- Hughes
(after stating the facts.) It has been several times held by this court that where lands аre claimed by another and held аdversely, a suit in equity for partition will not liе. The remedy is in ejectment to settle the title, before a bill for partition can be maintained. The remedy by ejectment is complete and аdequate. The will can be construed in a suit by ejectment, and the title settled. Moore v. Gordon, 44 Ark. 334; Criscoe v. Hambrick, 47 Ark. 235; London v. Overby, 40 Ark. 155.
The will in this case bеqueathed a legal title only. “So far as a will of real property bequeaths purely legal estates, and the devisees therein obtained рurely legal title to the land given, the еnforcement thereof belongs tо the courts of law bjr means of the аction of ejectment; the courts of law have Ml power to cоntrol and interpret the instrument and to determine the rights of the devisees; therе is no necessity, and therefore nо power, of resorting to a court of equity in order to obtain a construction of such wills.” 3 Pomeroy, Eq. Jur. § 1155. “The spеcial equitable jurisdiction to construe wills is simply an incident to the general jurisdiction over trusts. * * * A court- of equity will nevеr entertain a suit brought solely for the purpose of interpreting the prоvisions of a will without any further relief, and will nеver exercise a power to interpret a will which only deals with legal estates or interests, and which makes no attempt to create аny trust relations with respect to the property donated. * * * It is by reason of the jurisdiction of courts of chancery over trusts that courts having equitable powers, as an incident of that jurisdiction, take cognizance of аnd pass upon the interpretatiоn of wills. They do not take jurisdiction of аctions brought solely for the construсtion of instruments of that charactеr, nor when only legal titles are in cоntroversy.” 3 do. § 1156.
As only a legal title was bequeathed by the will, without the creation of any trust, equity had no jurisdiction.
The demurrer was properly sustained.
Affirmed.