151 So. 837 | Ala. | 1933
In Kaplan v. Coleman et al.,
In the case first cited, Cowles v. Pollard, a bill filed by the executor of the will of Thomas M. Cowles, deceased, to foreclose a mortgage executed to secure the payment of purchase money of a certain tract of land, which the complainant, as executor, had sold under the decree of the chancery court, made in the course of the administration of the estate, and the construction of the will arose as an incident to that proceeding. This court, in disposing of an appeal from a decree granting the relief, observed: "It is now well settled in this State, that where the trusts of a will are doubtful, or the personal representative may have difficulty, or be embarrassed in the execution of such trusts, a court of equity will, at hisinstance, take jurisdiction to construe the will, and aid and direct the administrator or executor in the performance of his duties. * * * Such has been the proceeding in this case. And when a court of chancery once takes jurisdiction of an administration, on any ground of equitable interposition, the cause will be retained, and the administration will be conducted and finally settled in that court." Cowles v. Pollard,
In Carroll v. Richardson,
In Reid et al. v. Armistead et al.,
The bill in Schowalter et al. v. Schowalter,
In Hinson v. Naugher et al.,
In Gunter v. Townsend et al.,
In Woodroof et al. v. Hundley,
The bill in National Jewish Hospital for Consumptives v. Coleman,
By the great preponderance of authority, the power of courts of equity to construe wills is incidental to their jurisdiction to declare and enforce trusts, or the protection of property rights in property the subject of trusts, and the jurisdiction must be invoked by a party or parties interested in the property or the administration of the trust. Cowles v. Pollard,
In Ashurst et al. v. Ashurst,
The decision of this court in the cases heretofore referred to — and they are the leading cases in this state on that subject — do not sustain the proposition that courts of equity will intervene to give advisory opinions or render advisory decrees, in respect to the rights of parties in trusts, or the interpretation of the instruments creating such trusts, when the jurisdiction of the court is in no way invoked to supervise and control the administration of the trust, even at the instance of the parties having a pecuniary interest in the trust property, and one who has no such interest certainly cannot invoke such jurisdiction.
The statute, section 5686, Code of 1923, provides that "infants not having guardians must due by next friend, and must be defended by a guardian of the appointment of the court." (Italics supplied.)
And section 6519, Code of 1923, provides: "Persons of unsound mind may sue by next friend, and guardians may be substituted; and upon restoration to sanity, the suit may proceed in their own names."
It has been uniformly ruled that these statutes authorize institution of suits by the minor or person of unsound mind intheir own names by next friend, and not by a person who sues "for and on behalf of such minor." Savage et al. v. Smith,
In the case last cited, it was said: "The suit was by a bill in equity and in the name of the guardian rather than in the name of the ward by the guardian. For this reason the circuit court was without jurisdiction to bind the ward." And in Wallace v. Montgomery, Superintendent of Banks, et al., supra, "The court long since committed itself to the proposition that suits, in equity, must be brought in the name of the idiot or lunatic, stating that he sues by his guardian, as in the case of an infant suing by his next friend. As we said in the case of West v. West,
It clearly appears from the averments of the supplemental bill that it is without equity. The complainant has no pecuniary interest in the subject-matter — the trust property; and the bill does not seek to bring the trust or any part of the property subject thereto within the jurisdiction and control of the court. It merely seeks an advisory decree or opinion in respect to the respective interests of the parties, and the minor, Wileyna. *657 L. Upshaw, who, if the averments of the bill are true, has an interest in the property, is not a party to the proceeding. Nor is the supplemental bill in this respect in any way aided by the original bill, as it is subject to the same fundamental defects.
We are therefore of opinion that the court was without jurisdiction to render the decree from which the appeal is prosecuted, and that it must be dismissed.
Appeal dismissed.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.