
    Rothgeb v. Mauck.
    A petition was filed by an executor under the act of 1857 (54 Ohio L. 202;. 8; Rev. Stat., § 6202), in which he states that doubts are entertained by himself and others as to the validity of a certain provision in the testator’s will, requiring him to erect a monument; and that he desires the direction and judgment of the court whether the provision is valid; but it is not alleged that there is now in his hands, or will come within his control, any money or property which might be applied in defraying such expense : Held, That sufficient facts are not stated to require such direction or judgment of the court.
    Appeal from the Court of Common Pleas of Gallia county. Reserved in the district court.
    Wesley Rothgeb, in 1871, filed a petition in the Court of Common Pleas of Gallia county, as executor of Reuben Rothgeb, setting forth that on October 15, 1855, the last will and testament of said Reuben Rothgeb, who died in September, 1855, was admitted to probate in the Probate Court of Gallia county, a copy of which will is made a part of the petition ; that he, Wesley Rothgeb, the executor named in the will, thereupon gave bond, entered on the discharge of his duties, and took possession of the real and personal estate; and, further, that he has received the rents of the real estate; but that some of the heirs dispute the validity of the devises and bequests in the will; and there being doubts as to their validity, and the executor being unadvised what course to take, and what is the true effect and construction of the will, he prays that the court will construe the will and give him direction as to the validity of its provisions and such other relief as the case may require.
    The parties defendant are the testator’s heirs, who filed an answer averring that the will is void. Reuben Rothgeb had never married.
    By his will the testator directed that his personal effects and moneys should be applied to the extinguishment of his debts, and that any balance remaining due should be paid from the rents of his real estate, consisting of a farm, situated in Gallia county. The principal part of the debts was embraced in two mortgages on the farm, each for three hundred dollars. The testator was required to rent the farm, from time to time, during a period of twenty years, and after paying the debts he was directed to erect a marble monument. The size and form of the monument, .and the inscription to be placed thereon, are stated in the will. The proposed inscription contains expressions in relation to the existence of God and a future state, the divinity of Christ, and the origin of the Bible. The monument was not to be erected at the grave of the testator, but on a lot to be purchased by the executor for the purpose, and paid for out of the rents of the farm. There was no direction that even the name of the testator should appear on the monument.
    The third and fourth clauses of the will are as follows:
    “ Third. I give my said farm, at the end of said twenty years, to the best and most scientific farmer of or among my nephews who may then be of age, with this provision, that he pay to the next best of his competitors five hundred dollars on taking possession of the farm.
    
      “Fourth. I give three-fourths of the money which may be left and on hand to the best every-day housewife among my nieces, who may be eighteen years of age, and to the ■next best of her competitors I give the remaining fourth of said money.”
    No provision is made as to the manner in which the beneficiaries under these clauses are to be ascertained.
    
      S. A. Nash and Stallo & Kittredge, for plaintiff.
    
      Simeon Nash, for defendants.
   Okey, J.

A fair construction of the will requires us to say that the monument, if erected, can only be paid for out of the proceeds of Rothgeb’s personal estate existing at the time he died, and the rents of the farm during the period of twenty years thereafter. After the period of twenty years from the testator’s death, the executor had no further control over the real estate. Any direction which might be given to the executor should, therefore, have relation to such persoualty and rents.

According to well-settled principles, an executor charged with the execution of a trust, having reasonable doubt as to the disposition of funds in bis hands, has a right to apply to a court of equity for directions. Crosby v. Mason, 32 Conn. 482; Goodhue v. Clark, 37 N. H. 525; Wheeler v. Perry, 18 N. H. 307; Treadwell v. Cardis, 5 Gray, 341; Stevens v. Warren, 101 Mass. 564; Horah v. Horah, Winston’s (N. C.) L. and Eq., 2 pt. 107; Walrath v. Handy, 24 Howard’s Pr. 353. And see Collins v. Collins, 19 Ohio St. 468; Rhea v. Dick, 34 Ohio St. 420; 1 Redfield on Wills (4th ed.), 492.

In this state it is provided by statute that “ any executor, .administrator, or guardian may maintain a civil action in the court of common pleas, against the creditors, legatees, or distributees, or other parties, asking the direction or judgment of the court, in any matter affecting the tr'ust, estate, or property to be administered, and the rights of the parties in interest, in the same manner and as fully as was formerly entertained in courts of chancery.” (54 Ohio L. 202, § 8; Rev. Stat. § 6202.) See Lewin on Trusts (7th ed.), 320, 534.

• .To trace the origin of that jurisdiction, or define its exact boundaries, or show the manner in which it is exercised in England and the various states, is in this case unnecessary. The executor must show that “ he is interested” in the question: Horah v. Horah. He invokes the power of the court “ for his own safety :” Goodhue v. Clark. That power “ will not be exercised except in matters of importance-:” Crosby v. Mason. And, “without an allegation that there was property on which the will could take effect certainly, the complaint does not state facts sufficient to constitute a cause of action:” Walrath v. Handy.

The amount of personal property is not stated. Neither the size of the farm, its value, nor the amount of rents-appears. Nor is there any allegation that the-debts have-been paid, or that the executor has or will ever have one-dollar which could lawfully be applied in buying a lot or erecting a monument, if we should sustain the provisions of the will on that subject. Courts do not sit to decide abstract questions, but cases involving real, substantial rights. If this is true, as it clearly is, even where the effect of the opinion sought would be necessarily confined to the parties to the suit, a fortiori the rule applies to the questions propounded here. Moreover, this objection is distinctly made in the brief of counsel for defendants, to which counsel for plaintiff'have replied; but no application has been made for leave to amend the petition.

As to the devise in the third clause of the will, it is sufficient to say that its validity or invalidity is no concern of the plaintiff. And with respect to the bequest in the fourth clause, the same objection to relief exists as in case of the lot and monument. Besides, in relation to both clauses, it does not appear that all the persons from whom the -beneficiaries should be selected are before the court.

We all think that upon the facts stated in the record, a court of equity should express no opinion as to the validity of the provisions of the will.

Petition dismissed.  