From judgment for plaintiff the defendants appealed.
This appears to be an action brought by the plaintiff, one of the devisees of the testator, against such of the other devisees as are inesse, for the purpose of obtaining a construction of the will as to the devisees of real estate, and to determine what estates some of the devisees take. While we readily concur in the correctness of the decree of the learned judge construing the will in all its parts, we cannot
recognize the regularity of this proceeding nor the jurisdiction of the court to entertain it. It seems to be predicated upon the idea that a court of equity has a sweeping jurisdiction in reference to the construction of a will, which, under the authorities, is an erroneous one. Tyson v. Tyson,100 N.C. 368; Cozart v. Lyon, 91 N.C. 282" court="N.C." date_filed="1884-10-05" href="https://app.midpage.ai/document/cozart-v--lyon-3647940?utm_source=webapp" opinion_id="3647940">91 N.C. 282. The jurisdiction in matters of construction is limited to such as are necessary to the present action of the court. The court will not undertake to construe a devise in a proceeding of this character, for the rights of devisees are purely legal and must be adjudged when a cause of action arises. The advisory jurisdiction of courts of equity is primarily confined to trusts and trustees, which include executors, as far as their rights, powers, and duties under the will are concerned. Alsbrook v. Reid, 89 N.C. 151" court="N.C." date_filed="1883-10-05" href="https://app.midpage.ai/document/alsbrook-v--reid-3670520?utm_source=webapp" opinion_id="3670520">89 N.C. 151;Little v. Thorne, 93 N.C. 69" court="N.C." date_filed="1885-10-05" href="https://app.midpage.ai/document/little-v--thorne-3646196?utm_source=webapp" opinion_id="3646196">93 N.C. 69. As said by Judge Pearson, in Tayloe v.Bond, 45 N.C. 16: "We can see no ground upon which to base a jurisdiction to allow executors to ask the opinion of the Court as to the future rights of a legatee: for instance, `Who will be entitled when a life estate expires?' `When property is given to one for life, with a limitation over, does the first taker have the entire interest by the rule in Shelley'scase?' or, `What would be the consequence of a supposed state of facts that may hereafter arise?' True, these are matters of construction, but the question cannot now (505) be presented so as to be settled by a decree. A declaration of opinion would be merely in the abstract until existing rights come in conflict, so as to give the Court a subject to act on." We were inclined to think that the jurisdiction might be founded upon a liberal construction of the act of 1893 (Revisal, sec. 1589), but, upon consideration, we find it cannot. It is not an action brought by the plaintiff, John O. Heptinstall, against some person claiming an estate or interest in the tract devised to him, but is evidently a proceeding brought in the interest of the several devisees of parcels of land to settle and determine all their respective rights arising under the will in presenti
and in futuro, in which the executors, as such, have no interest. The action and the appeal are
Dismissed.
Cited: Campbell v. Cronly, 150 N.C. 472; Reid v. Alexander, 170 N.C. 303" court="N.C." date_filed="1915-12-08" href="https://app.midpage.ai/document/reid-v--alexander-3676062?utm_source=webapp" opinion_id="3676062">170 N.C. 303.