(after stating the facts). As will be seen by reference to the statement of facts, this is a bill brought by the children of John F. Frank to obtain a construction of the fourth paragraph of his will; the children maintaining that thereunder they obtained a fee simple title to the lands devised in said paragraph, and the answer of the guardian ad litem of the grandchildren maintaining that the children obtained a life estate with a vested' remainder in the grandchildren. There is no trust involved, no trust estate is created, and the excutors are not seeking aid or instruction in the discharge of their duties.- The indebtedness of the estate has been paid. The sole 'question sought to be determined is the title conveyed to the respective parties to this suit under the fourth clause of the will. No controversy has arisen over it. The object of the suit appears to be to prevent rather than to settle a controversy. There are no equitable titles or trusts created by the will. The titles conferred by the fourth paragraph — whatever they may be — are purely legal and capable of assertion in a court of law. Has a chancery court jurisdiction to entertain this suit?
Mr. Pomeroy says: “Although there is not an entire uniformity in the decisions by courts of different States upon this particular subject, yet the doctrine which seems to be both in harmony with principle and sustained by the -weight of authority is that the special equitable jurisdiction to construe wills is simply an incident of the general jurisdiction over trusts; that a court of equity will never entertain a suit brought solely for the purpose of interpreting the provisions of a will without any further relief, and will never exercise a power to interpret a will which only deals with and disposes of purely legal estates or interests, and which makes no attempt to create any trust relations with respect, to the property donated.” 3 Pomeroy’s Equity Jur. (3 Ed.) § 1156.
This statement is quoted and followed in Head v. Phillips, 70 Ark. 432, and an examination of the authorities'proves it to be sound.
The same principle is thus stated in the Encyclopsedia of Pleading & Practice: “In fact, by the great preponderance of authority, the power of courts of equity to construe wills is simply an incident of their general jurisdiction over trusts; and while such power will be exercised liberally on behalf of executors, trustees or other persons interested in trusts created by wills, suits brought solely for the construction of wills, where no trust is involved, will not be entertained.” 22 Enc. PL & Pr. 1191.
The Court of Appeals of New York said: “It is by reason of the jurisdiction of the court of chancery over trusts that courts having equity powers, as an incident of that jurisdiction, take cognizance of, and pass upon, the interpretation of wills. They do not take jurisdiction of actions brought solely for the construction of instruments of that character, or when only legal rights are in controversy.” Chipman v. Montgomery, 63 N. Y. 221.
In Bailey v. Briggs, 56 N. Y. 407, it is thus expressed: “It is when the court is moved in behalf of an executor, trustee or cestui que trust, and to insure a correct administration of the power conferred by a will, that jurisdiction is had to give a construction to a doubtful or disputed clause in a will. The jurisdiction is incidental to that over trusts.”
The Illinois court said: “Where no trust is created, the law, as we understand it, is that neither the executor, nor the heir or the devisee who claims only a legal title in the estate, will be permitted to come into a court of equity for the purpose of obtaining a judicial construction of the provisions of the will.” Strubher v. Belsey, 79 Ill. 307. This case was followed and reiterated in Harrison v. Owsley, 172 Ill. 629. Mansfield v. Mansfield, 203 Ill. 92, is strikingly similar to the case at bar. The lower court had given judgment on titles derived from a will at the instance of an heir, where no trust was involved, and the Supreme Court declined to pass upon the will and dismissed the action for want of jurisdiction, although the jurisdiction had not been questioned.
The following cases have also been examined and found to oontain the same principle, in many of which there are reviews of the authorities on the subject: Woodlief v. Merritt, 96 N. C. 226; Dill v. Wisner, 88 N. Y. 153; Torrey v. Torrey, 55 N. J. Eq. 410; Fahy v. Fahy, 58 N. J. Eq. 210; Kelley v. Kelley, 80 Wis. 486; Mansfield v. Mansfield, 203 Ill. 92; Miller v. Drane, 100 Wis. 1.
A demurrer was interposed in the chancery court which does not seem to have been passed upon, but it raised the question of jurisdiction. Kelley v. Kelley, 80 Wis. 486. Even without the demurrer, however, the court should have declined to pass upon the issue tendered, as it is not the subject-matter of jurisdiction of the chancery court; and consent cannot give such jurisdiction. Mansfield v. Mansfield, 203 Ill. 92; Richards v. Ry. Co., 124 Ill. 517.
In view of these authorities, and many more which may be found cited by the text writers and reviewed in the cases mentioned, it was unquestionably the duty of the chancery court to refuse to entertain the bill; and, for the error in entertaining it and rendering a decree construing the will, the decree is reversed, and the cause remanded with instructions to dismiss the bill without prejudice to any future litigation which may arise between the parties.