I am obliged to dissent from that portion of the opinion which holds that in Merrill v. Boal, 47 R.I. 274, 132 A. 721 the court determined the question which is here presented.
That case involved only the admission to probate a certain trust deed as a part of the will of Mr. Davis. The *Page 78 Probate Court, originally, and the Superior Court on appeal, each held that the trust deed was not executed animo testandi and dismissed the petition for probate. The appellant Merrill brought the case to this court by her bill of exceptions and the court held that the trust deed was executed animo testandi and ordered a decree entered in the Superior Court admitting the trust deed to probate as a part of the will.
The sole issue in that case was whether the trust deed should be admitted to probate. This issue involved in no way the construction of the will of Mr. Davis, which was admitted to probate April 5, 1915. The Superior Court has no authority to construe a will. So held in Town of South Kingstown v.Wakefield Trust Co., 48 R.I. 27. The statute provides that all bills in equity for the construction of any will or trust deed shall be certified to this court for its determination by the Superior Court whenever the cause is ready for hearing for final decree. § (4968) General Laws 1923. The case now before us shows an application of this rule, it being a bill in equity brought in the Superior Court for the construction of the ninth clause of the will of Mr. Davis and certified to this court for determination; it being ready for hearing for final decree. The validity or effect of the ninth clause of the will of Mr. Davis was not construed in Merrill v. Boal, supra. A fortiori the validity and effect of the trust deed as a part of his will could not be determined until after the trust deed had been admitted to probate.
STEARNS, J., concurs in the dissenting opinion of SWEENEY, J.