
    Losing Parker, executor, vs. Leonard M. Parker & others.
    Middlesex.
    January 19. — 20, 1876.
    Colt & Endicott, JJ., absent.
    An executor, who has no title as such in the real estate of his testator, and who does not allege that there is any personal estate in his hands for distribution, cannot maintain a bill in equity to obtain the instructions of this court as to the construction of the will of the testator, although the bill alleges, and the fact appears, “that there is and was left by said testator personal estate and lands.”
    Bill in equity by one of the executors of the will of Loring Parker, against the heirs at law and legatees of the testator, the first named defendant being also an executor of the will.
    The bill alleged that the testator died on July 16, 1873, leaving no widow, and that his will, dated April 18, 1863, was duly admitted to probate on September 16, 1873 ; that the executors named therein were duly appointed and qualified ; that the true construction of the will was doubtful in so many particulars as to need the aid and direction of this court to determine the same, and the duties of the executors concerning the estate of the deceased and the rights and interests of the several parties interested therein ; that “ there is and was left by said testator personal estate and lands ; ” that the plaintiff desired the direction of the court “ in the following particulars and in any other that may be material to the parties in respect to their interests, property and titles to the estate real and personal of said testator, under the provisions of said will.” Then followed three questions in regard to the construction of the will, and a prayer “ for such other direction and instruction as to the construction of said will and the rights and estates of 'the parties under the same as may be proper and necessary.”
    A copy of the will was annexed. Under the decision of the court it is only material to state that no property was devised or bequeathed to the executors, in their representative capacity.
    Hearing before Morton, J., who found that the allegations of the bill were true, and reserved the case for the consideration of the full court.
    
      D. S. Richardson & G. F. Richardson, for the plaintiff.
    
      F. A. Worcester, for the defendants.
   The Court

held that the executor had no title in the real estate, and that it did not appear that there was any personal property in his hands for distribution among the defendants, and that therefore no case was shown for the exercise of the jurisdiction of the court, and Dismissed the hill.  