
    Thomas H. Peverly vs. Harry R. Peverly.
    Middlesex.
    March 22, 1899.
    
    April 4, 1899.
    Present: Holmes, Knowlton, Lathrop, Barker, & Hammond, JJ.
    
      Will — Petition by Devisee for Instructions—Want of Jurisdiction.
    
    The fact that both A. and B. derive their titles as devisees under a will does not entitle either to ask the Probate Court by petition for instructions upon the proper construction of the will; and, the determination of the question not appearing to be necessary to the administration of the testator’s estate under the will, the petition must be dismissed for want of jurisdiction.
    
      Petition to the Probate Court, by a devisee under the will of Robert H. Peverly, for the construction thereof. A decree • was entered that the land in question passed to the petitioner for life, with remainder on his decease to the respondent and his heirs and assigns, which decree was confirmed, on appeal, by a single justice of this court. The petitioner appealed to the full court. The facts appear in the opinion.
    
      C. A. Welch, for the petitioner.
    
      W. F. Kimball, for the respondent.
   Barker, J.

This is a petition, originally brought in the Probate Court by a devisee of land against another devisee, alleging that there is an ambiguity in the provisions of the will so that it is uncertain whether two parcels of land were intended by the testator to be included in a devise given by the will to the petitioner for life, with remainder in fee to the respondent, the petitioner’s son, all the rest and residue of the testator’s estate being given by the will to the petitioner, and asking that the will may be construed and the true intent and meaning thereof declared.

The fact that the petitioner and the respondent both derive their titles under the will does not entitle either to ask the court by petition for instructions upon the proper construction of the will. The determination of the question does not appear to be necessary to the administration of the testator’s estate under his will. The petition must be dismissed for want of jurisdiction. Austin v. Bailey, 163 Mass. 270.

Decree reversed, and petition dismissed.  