
    Darius M. Nickerson, Jr., executor, appellant.
    Barnstable.
    March 17, 1902.
    June 17, 1902.
    Present: Holmes, C. J., Knowlton, Morton, Hammond, & Loring, JJ.
    
      Equity Jurisdiction, Bill for instructions. Executor.
    
    The executor under the will of one who was the executor and residuary legatee under the will of another has no locus standi to maintain a bill for instructions as to whether his testator as residuary legatee under the earlier will took absolutely or only for life.
   Holmes, C. J.

This is a petition for instructions as to whether the residuary clause of the will of one Clement Kendrick gave the residue to Sarah A. K. Turner, the residuary legatee, absolutely or only for life. Sarah Turner was executrix of Kendrick’s will. The petitioner is the executor of Sarah Turner’s will. The petition alleged nothing to give him a locus standi to ask instructions, and the facts afterwards agreed disclose merely that Sarah Turner’s account showed the residue to have been transferred to herself and that the petitioner has in his hands the proceeds of the property. It does not appear that the property exists in a separate and identified form, and it cannot be presumed to do so in view of the appropriation by Sarah Turner. The petitioner has no standing under the will of Kendrick, of course, and it does not appear that he holds a fund in a fiduciary capacity by his own election. Indeed he could not do so in such a sense as to entitle him to come here. His only relation to the fund is that he has it in his hands and that he represents a person who claimed it as hers. If it is not hers he must give it up or make it good, but that is not enough to make him a trustee and to entitle him to petition for instructions, however willing he may be to conform to the opinion of the court. He does not succeed to Sarah Turner’s fiduciary position as Kendrick’s executrix. He is merely a possible defendant in a possible suit, and as he represents the opposing claim there is nothing for him to do but to abandon it or to await the action of the other side.

D. M. Nickerson, Jr., pro se.

T. B. Armstrong, for the residuary devisees under the will of Sarah A. K. Turner.

O. Bassett, for the heirs at law of Clement Kendrick.

Petition dismissed.  