The frequent filing of bills under the old, and institutions of actions in the nature of bills in equity under the new practice, by executors and trustees against those entitled to the beneficial interests, for the purpose of obtaining a construction of wills, have led to the thorough crystalization of the leading principles governing causes of this kind.
1. Only such questions will be determined by the court as it is necessary to settle in order to protect the fiduciary in the discharge of his present duty. Tyson v. Tyson, 100 N.C. 360; Tayloe v. Bond, 45 N.C. 5.
2. The courts will not assume jurisdiction, except where there is a present existing question of right to be acted upon, the determination of which can now be made the subject matter of a decree. They will not advise as to the past conduct of an executor, nor as to the future and contingent rights of legatees. Tayloe v. Bond, supra; Little v. Thorne, 93 N.C. 69.
3. The trustee who seeks advice as to the disposition of (477) property or the distribution of a fund, must as a rule have it in his possession, so that the order of the court may be carried out.Perkins v. Caldwell, 77 N.C. 433.
While the advisory jurisdiction of the courts cannot be invoked to *Page 257 elicit an opinion on an abstract question, yet where the court has properly taken cognizance of a case for the settlement of another controverted point, for the proper determination of which it incidentally becomes necessary to place a construction on a will, the courts acting upon a familiar rule of equity practice make an exception to the general rule.Little v. Thorne, supra. The executor had in hand the sum of $5,727.47 arising from the sale of the personal property after paying the debts of the testator and the cost of administration. The leading purpose of the testator to make an equal division of all of his estate, real and personal, except a specific legacy of $500, left in trust for his granddaughter, Mary B. Atkinson, is clearly expressed in the will and must be carried out if it is in the power of the court to do so. Lassiter v. Wood, 63 N.C. 360;King v. Lynch, 74 N.C. 364; Alexander v. Summey, 66 N.C. 577. There was no intent expressed to treat as advancements the indebtedness of his children nor on the other hand to have any such debt left out of an account of advancements or released.
The defendant Charles T. Balsley, one of the sons of the testator, was indebted to the estate in the aggregate sum of $2,885.87, with interest on various smaller sums, making up that aggregate from various dates. His creditors, who are defendants and who appealed from the judgment of the court, contended that the indebtedness of Charles ought not to be added, in order to arrive at the aggregate value of the real and personal property and make an equal division of the same; but that leaving his indebtedness out of the estimated value of the whole estate, Charles was entitled to receive one-fourth. The executor was (478) advised that the amount of this indebtedness should be added to ascertain the value of the estate, and deducted from the one-fourth thereof in determining the amount, if anything, coming to Charles. When the executor sought to distribute the trust fund arising from the sale of the personalty and left after the payment of debts and expenses, he was confronted with some controverted questions, about which he had a right to ask the advice of the court for his own present protection.
But if the indebtedness of Charles was to be charged against him as an advancement, the executor could not determine without some authoritative valuation of the entire real estate whether after deducting the debt from one-fourth of the aggregate sum ascertained by adding together the balance in hand arising from the sale of the personalty, the sums due from the heirs and distributees and the estimated value of the real estate, there would be any excess on hand due to Charles. Then, if there should be any excess, it would become necessary to know what portion, if any, should be exempt from his debts, and if treated as a homestead, how the fund should be disposed of for the benefit of Charles and his creditors. *Page 258
But the defendants assign as error the order that the land be sold for the purpose of making an equal distribution under the will. It is declared by the court in express terms however that it was made by "consent of parties" and it is manifest therefore that no exception can be taken to the sale at this late day.
So the whole fund is now in hand, and it remains to determine what interest Charles, or such of the defendants as are his creditors, have in its distribution.
We think that the motion to dismiss for want of jurisdiction was properly refused. The executor set forth facts sufficient to show that he had a right to ask the advice of the court as to the distribution (479) of the fund already in hand, and when it was made to appear that the advice could not be given without first ascertaining and determining the value of the real estate, the court having, in the exercise of its equitable jurisdiction, once taken rightful cognizance was empowered and required to afford complete relief, even though it incidentally involved the granting of a remedy ordinarily administered by the court in a special proceeding. We have seen that where the court takes cognizance for a different purpose, it will incidentally construe a will in order to afford the relief to which a party is entitled, so in the case at bar the court, finding it necessary to determine the value of the land, was authorized to have it ascertained in the way provided by law. We are relieved from the necessity of determining whether the heirs could have insisted on an actual partition of the land by commissioners instructed to ascertain the aggregate value of it, and if it should become apparent that the debt of Charles would amount to more than the value of a share, to divide it as near as might be practicable into three equal shares to the other heirs entitled under the will. The court by consent of all parties ordered in the progress of this litigation that the land be sold, and the fund, which stands in place of it, is now subject to the order of the court just as the residue of the proceeds of the sale of personalty has been from the filing of the complaint. The voluntary consent of all parties interested, to the order of sale likewise dispenses with the necessity for considering or discusing the question whether the terms of the will are such as to give the executor, by implication, power to sell. It is immaterial, in view of the assent of the parties to the sale, whether in the face of objection the executor would have been deemed authorized, by implication, to sell in order to carry out the leading purpose (480) of the testator to make all of the four devisees equal, or whether, in the way indicated, some of the devisees might have demanded actual partition.
If Charles Balsley's indebtedness exceeds his share of the estate, it *Page 259 would seem that the court provided for the disposition of the fund, in the manner pointed out as proper in Vanstory v. Thornton, 112 N.C. 196, and the cases cited by the Justice who delivered that opinion. We think there was
No error.
Cited: Bowden v. Lynch, 173 N.C. 206; Perry v. Perry, 175 N.C. 145.