
    E. S. REID et al. v. M. A. ALEXANDER et al.
    (Filed 8 December, 1915.)
    Courts — Wills—Advice—Appeal and Error.
    The courts will not entertain jurisdiction to construe a will merely to advise the parties as to the interests they will tahe thereunder. Littleton v. Thorne, 93 N. C., 71, cited and applied.
    
    Appeal by both parties from Lane, J., at February Term, 1915, of MECKLENBURG.
    Action for the construction of a will.
    
      Cameron Morrison, S. C. Dockery and J. H. McClain for plaintiff.
    
    
      Cansler & Cansler for defendant Alexander.
    
    
      Pharr & Bell for defendants Nesbit.
    
    
      
      In this case, on the auestion of the identity of the Hudson and the Home place, Branch v. Hunter, 61 N. C., 1, is cited; on the presumption of testacy and under the language of the will, the Hudson place goes to the residuary legatees; the third item of the will presents a case of latent ambiguity, admitting parol evidence; and the same applies to the William Lee place, mentioned in the codicil, the question being as to the testator’s intent under the evidence, and not alone whether there was such a place.
    
   Allen, J.

This is an action between the devisees and legatees of John 0. Alexander for the purpose of asking the advice and opinion of the court as to their respective interests under the will and for a construction of the will, and, as such, it cannot be entertained, for want of jurisdiction in the Court.

It has been so held since the case of Tayloe v. Bond, 45 N. C., 14, decided in 1838, and one of the latest cases upon the subject is Heptinstall v. Newsome, 148 N. C., 504, in which case an action brought for the same purpose was dismissed.

In Little v. Thorne, 93 N. C., 71, the doctrine is stated clearly and accurately by Ashe, J. He says: “The action seems to be predicated upon the general idea that a court of equity has a sweeping jurisdiction in reference to the construction of wills, which Chief Justice Pearson said, in case of Tayloe v. Bond, Bush. Eq., 5, was an erroneous idea. In that case, tbe learned judge, in bis well-considered opinion, bas given a very clear exposition of tbe jurisdiction of a court of equity in tbe construction of wills, and from it we deduct tbe following rule as established: That tbe jurisdiction in matters of construction is limited to-such as are necessary for tbe present action of tbe court, and upon which it may enter a decree or direction in tbe nature of a decree. It will never give an abstract opinion upon tbe construction of a will, nor give advice, except when its present action is involved in respect to something to be done under its decree. That it will not entertain an action for tbe construction of a devise, for tbe rights of devisees are purely legal, and must be adjudged by tbe courts of law. Tbe only exception to this is where a case is properly in a court of equity under some of tbe known and tbe accustomed beads of jurisdiction, and a question of construction incidentally arises, tbe court will determine it, it being necessary to do so in order to decide tbe cases — as, for instance, in actions for partition, or for tbe recovery of legacies where devises and legacies are so blended and dependent on each other as to make it necessary to construe tbe whole in order to ascertain tbe legacies, because tbe court, having jurisdiction over legacies, must take jurisdiction over all matters necessary to its exercise.

“The advisory jurisdiction of tbe court is primarily confined to trusts- and trustees. Alsbrook v. Reid, 89 N. C., 151, and cases there cited. Hence tbe court will advise executors, who are regarded as trustees, as to tbe discharge of tbe trusts with which they are clothed, and, as incident thereto, tbe construction and legal effect of tbe instrument by which they are created, when a case is presented where tbe action of tbe court is involved as distinguished from an abstract opinion. Simpson v. Wallace, 83 N. C., 477; Tayloe v. Bond, supra. But in tbe latter case it is said there is no ground upon which to base a jurisdiction to give advice to an executor in regard to bis future conduct or future rights or to allow him to 'ask tbe opinion of tbe court as to tbe future rights of a legatee,’ as, for instance, 'who will be entitled when a life estate expires.’- But tbe advice is only given upon an existing state of facts upon which a decree or some direction of tbe court in nature of a decree is solicited.”

If "the questions discussed on tbe oral argument and in tbe briefs were before us for decision we would bold :

1. That tbe Hudson tract is no part of tbe home place, and does not pass under the third item of tbe will, on tbe authority of Branch v. Hunter, 61 N. C., 1.

2. That, having in mind tbe presumption that tbe testator intended to dispose of all of bis property, and that be says in bis will that be desires bis land to be divided ampng bis children as declared in bis will, and that the words in the residuary clause of the will, “or otherwise,” would be without meaning if a contrary construction should be adopted, the Hudson place passes under the fourth item of the will to the residuary legatees and devisees.

3. That the description in the third item as “my home place and on which I reside” presents a case of a latent ambiguity, and that parol •evidence is admissible for the purpose of identification, and that this question has been properly tried.

4. That the description in the codicil of 17 December, 1903, as the “plantation known as the William Lee place containing about one hundred acres, more or less,” presents the same question, and that this has not been properly tried, in that the question for determination under the evidence was what land the testator intended to devise by the description, and not alone whether there was a place known as the William Lee place.

There is evidence that William Lee formerly owned a tract of land of 268 acres; that the testator acquired 148 acres of this land in 1894, and the remainder, 120 acres, in 1902; that he had a line surveyed cutting off a part of one of these tracts and adding it to the other on which M. A. Alexander lived, and making this part 185% acres, and other evidence on the question of identification.

Action dismissed.  