
    
      Josiah Bowers and wife v. Loranna Smith et al.
    
    Jurisdiction in struciion^and0" validity of wills,
    
      M. S. Bidwell, for complainants ; George Wood, for the defendants.
   Bill to obtain a construction of the will of Elias Smith, deceased. The chancellor observed as follows, in relation to the power of the court in settling the construction and passing upon the validity of wills : “ The bill in this case appears to have been filed upon the supposition that it is a part of the established jurisdiction of the court of chancery to settle all questions which arise as to tho construction and validity of the provisions of a will of real estate as well as of personal property. This court has jurisdiction in cases of trust. And the executor always takes the legal title to the personal estate of Jhe testator as a trustee. For so far as the provisions of the will are valid he holds the property in the character of trus« tee for the persons to whom it is bequeathed. And if there is any part of such property or any interest therein, which is not legally and effectually disposed of by the will, he holds it as trustee for those who are entitled to it under the statute of distributions. Any person claiming an interest in the personal estate of the testator, therefore, either as a legatee under the will or as entitled to it under the statute of distributions, may file a bill against the executors to settle the construction and ascertain the validity of the provisions of the will, so far as the complainant’s interest is concerned ; and to enable him to obtain from the executors such portions of the estate as he is either legally or equitably entitled to. So also, if the real estate of the testator is devised to a trustee, upon trusts, some of which are valid and others invalid, there is a resulting trust in favor of the heir at law ; where his interest is not turned into a legal estate under the provisions of the revised statutes. The cestui que trust in such cases also, may file a bill in this court to have his lights as cestui que trust in the estate settled and ascertained; and the trusts of the will carried into effect so far as they are valid and effectual. And where there is a mixed trust of real and personal estate it frequently becomes necessary for the court to settle questions as to the validity and effect of contingent limitations in the will to persons not in esse; in order to make a final decree in the suit and to give the proper instructions to the executors and trustees in relation to the execution of their trust. But I am not aware of any case in which an heir at law of a testator, or a devisee of a mere legal estate in the real property of the testator, and where there was no trust, has been allowed to come into a court of equity for the mere purpose of obtaining a judicial construction of the provisions of the will. On the contrary the decision of such legal questions belongs exclusively to the courts of law, except where they arise incidentally in this court in the exercise of its legitimate powers; and where the court has obtained jurisdiction of the case for some other purpose.”

;&how be broughti

objection for ⅜-⅞⅞8'

Decided that husband and wife ought not to join as co-plaintiffs in a suit relating exclusively to the wife’s separate perty ; such suit being considered as the suit of the husband,10 and as being instituted and prosecuted by him and under his influence ; but that in such a case the wife should sue by her next friend, and make her husband defendant.

That the objection that the husband is not the proper party tu file a bill for his wife’s separate estate will be waived if the defendants answer the bill without raising the objection.

Bill dismissed with costs, but without prejudice to the rights of any of the parties in any future litigation.  