
    *Frances E. Bussy and Others, by Charles Bussy, Guardian v. Thomas M'Kie and Others.
    Equity will not entertain jurisdiction merely to construe a will. Nor will it entertain jurisdiction of a cause involving titles to land, when no discovery or partition is sought; the defendant not being in possession of any title deeds necessary to enable the complainant to sue at law, and no other equity existing. A court of law is as competent to construe a will as a court of equity.
    The bill in this case was filed to obtain the construction of the court, on the will of Joseph Hightower, who died in June, 1811. The will contained several devises and bequests of real and personal property to the wife of the testator, and to his children, with various limitations and remainders. Some parts of the property had been sold to third persons, who claimed as bona Jide purchasers. Several of the legatees were dead. The bill prayed that the defendants might be made to answer, whether they did not come to the possession of the property with a full knowledge of the existence of a will of Joseph Hightower, and of the rights of the complainants under the will ; and that they might be decreed to deliver up the property, and to account for the increase and hire thereof; that a writ of partition be issued to divide the Cherokee pond plantation, and other real property, among the complainants, agreeably to their respective rights, under the will; that the settlement of the estate of Hightower be ordered; and that the complainants might receive the residue of the estate, if any, after the payment of the debts of Hightower.
    The defendants objected to the jurisdiction of the court, on the grounds, that it was merely a construction of the will of Joseph High-tower that was asked for, which the court of law could as well try and decide, as to the lands, in a suit to try titles. That as to the personal estate, an action of trover would lie, and there was perfect remedy at law ; that there was no allegation of fraud, or loss of papers, or want of discovery, for that the complainant had set forth his title correctly; and that, at all *events, the legal representatives ought to have and not the heirs.
    On the part of the complainant it was urged, that Hightower had left a large property, and a large, family; and that there had been many successive deaths, which produced various successions under the will, which required construction. That the construction of wills was a ground of equitable jurisdiction. That the bill sought a discovery, and demanded also an account for hire, and also prayed a partition. That the interests were various, and it would require many issues at law to try them; and the prevention of a multiplicity of suits was of itself a ground of equity jurisdiction.
    June, 1826. DeSaussure, Chancellor. Formerly there would have been no doubt as to the jurisdiction of the court under such circumstances : latterly the jurisdiction of the court is questioned in many cases not heretofore regarded as questionable. The court is urged on the one hand to avoid the usurpation of power and jurisdiction; and on the other it is pronounced an useless tribunal, unless it interposes its authority, and gives relief. This places the court in a painful situation, and verifies the expression of Lord Kames, “that in these limited jurisdictions, it is often more difficult to discern what comes directly within the powers and duties of the court, than to discover and decide on the merits of the particular case.”
    I disclaim any desire to enlarge the jurisdiction of the court; and I feel that J should be relieved from many painful and heavy causes, if the jurisdiction should be limited as narrowly as is sometimes urged by counsel. On the other hand, I have no desire to shrink from the performance of any duly that regularly devolves on me. In this state of mind, I am anxious to be guided by the wisdom of the intelligent tribunal which is authorized to ^decide on all questions of right, as well as on the boundaries of the jurisdiction of all inferior courts. In order to obtain this desirable object as soon as possible, I have come to the determination that it would be better to sustain the plea to the jurisdiction of the court on such reasonable grounds as produce a doubt in my mind.
    In the case before me, able counsel have argued seriously and earnestly against the jurisdiction of the court; and, without producing conviction, have, at least, occasioned doubt. It is therefore ordered and decreed that the objection to the jurisdiction of the court be sustained, and the bill dismissed : and I request that the case may be brought before the court of appeals for its judgment.
    January 30, 1827.
    Ford, for the complainants,
    who appealed. The case made out by the bill and answers was such as had always been, heretofore, entertained by the court of equity. As to the tract of land in the possession of Thomas M’Kie, the complainants and defendants are tenants in common under the will of Joseph Hightower; and it is submitted that the court of equity has always heretofore entertained exclusive jurisdiction of partition in such cases, and that the court of common pleas has no such jurisdiction under the act, except in cases of intestacy. The complainants claiming a right of action derived from the will of Joseph Hightower, the court ought to entertain jurisdiction of a bill against all the defendants, for the purpose of relieving all the complainants from the inconvenience, litigation and expense in which they must be involved in separate suits at law, in case their alleged rights under the will should not be sustained ; the construction of wills is of itself a ground of equitable jurisdiction; and outstanding deeds, improperly executed, should have been ordered to be cancelled. But the case principally rests on the ground of its being a case of partition.* If the limitation over be then the sole right vested in the complainants, and there is no ground for jurisdiction. If the limitation over be bad, then the complainants are tenants in common with M’Kie, and the court has jurisdiction.
    The court is therefore obliged to give construction to the will, before the jurisdiction can be determined.
    Bauskett, on the same side.
    The chancellor’s decree cannot be supported, unless the court decide that good. the executory devise over is
    Thompson, in reply.
    Admitting that the bill contains a prayer for partition, yet, after sustaining the jurisdiction, the court may have to decree the right of the whole tract of land, which would be trying titles. Courts of equity may have concurrent jurisdiction with courts of law, in partition and dower; but it is not every case of dower or partition that entitles the party to come into equity ; there must be some particular cause, or fact, of an equitable nature, where the titles are not disputed.
   Curia, per

Nott, J.

The bill in this case contains various matters, of which it is unnecessary that this court should take any notice; as the only question, submitted to our consideration is that which relates to the land in the possession of the defendant M’Kie. The complainants claim as devisees under the will of their grandfather Joseph High-tower; and the whole case turns upon the construction of his will. It is not pretended that the defendant has any title deeds in his possession, which are necessary to enable complainants to sustain an action at law. No discovery is sought. No ground of equity is alleged, other than that the construction of wills is a matter of equity jurisdiction. But a court of law is as competent to give construction to a will as a court of ^equity. It is said that the court has jurisdiction in all cases of partition. It will be time enousih to decide that question when the case shall occur. There is no question in this case respecting partition. The complainants ask for the whole land, and not for a part. They do not admit that the defendant is entitled to share the property with them. The complainants had a plain and adequate remedy at law ; and the bill was therefore properly dismissed. The decree of the chancellor is therefore affirmed.

Decree affirmed.  