100 So. 181 | Miss. | 1924
delivered the opinion of the court.
C. Kendrick, a citizen of the state of Mississippi died, leaving a last will and testament which reads as follows:
“Knowing the uncertainty of life and the certainty of death, I hereby make and declare this, my last will and testament. I desire my wife, Mary W. Kendrick, to serve as executrix, and have full power to act in all matters pertaining to my estate without bond. It is my will and desire that everything I possess, personal property of all kinds, all debts due me, all money on hand or on deposit or loaned, all real estate in Mississippi, Texas, and Tennessee — everything I possess except my house and lot on the corner of Jefferson & Preston Sts. in Louisville, Ky. This property I desire to go to and be divided among my heirs per stirpes as soon as the lease expires which may be in force at .¿he time of my death— All rent or lease money to go to my wife until the lease expires which may be in force at the time of my death.”
He left surviving him a widow, the appellee herein, and several nephews and nieces, but no children. He owned at the time of his death property situated in Mississippi, Tennessee, and Texas. The widow claims that the will devises all of jjjie testator’s property to her except the house and lot in Louisville, Ky., and brought this suit against the testator’s nephews and nieces, the sole purpose of which, according to the prayer of the bill, is:
“That this court will construe the will of the said testator by suitable decree so as to determine just what the said will, and each and every part thereof, means, and just what property this petitioner takes under the will, and what property, if any, the defendants take thereunder. ” •
The answer to this bill alleges that the only property devised by the will is that situated in Louisville, Ky., but admits that the appellee will inherit all of the decedent’s property situated in the state of Mississippi under the
The appellee’s construction of the will prevailed in the court below.
It will be observed from the foregoing statement of the case that the sole question presented for decision is whether or not the decedent devised all of his property except the house and lot owned by him in Louisville, Ky., to his widow, the appellee herein, or died intestate as to all of his property except the house and lot aforesaid. In either event all of the decedent’s property in Mississippi, and subject to the jurisdiction of the courts thereof, will go to the appellee; consequently the appellee’s right to such property can in no way be affected by a decision of the question presented. The construction of the will is therefore unnecessary, and, moreover, as will be observed from the prayer of the bill, this suit is brought, not for the purpose of obtaining any relief, but solely for the purpose of obtaining an interpretation of the provisions of the will.
“The special equitable jurisdiction to construe wills is simply an incident of the general jurisdiction over trusts;” and will never be exercised in “a suit brought solely for the purpose of interpreting the provisions of a will without any further relien” 3 Pomeroy’s Equity Jurisprudence (3 Ed.), section 1156.
It follows from the foregoing views that the court below should not have construed the will, but should have dismissed the bill of its own motion.
Reversed, and bill dismissed.
