Opinion by
Mr. Chief Justice Lord.1. The main object of this suit, as indicated by the argument, is to ascertain if the will in question creates a trust, and, if it does, to have it enforced by a trustee to be appointed by the court, none being named in the will. In our inquiry as to the existence of the trust contended for, we are not aided by averment, but are left to determine the question from the language employed in the will itself. The plaintiffs do not allege a trust for their benefit, and ask a construction of the will as affecting such trust, nor *68do they ask that a trust be declared, and that a trustee be appointed to execute it. They desire the will construed, and, to support the jurisdiction of the court, attempt to raise a trust by construction and argument. There must be actual litigation in respect to matters which are proper subjects of equity jurisdiction, such as trusts, before a court of equity can pass upon the interpretation of wills as incidental to its jurisdiction. Where parties plaintiff, by their complaint, allege a trust for their benefit, and seek its proper execution, they have a right to ask a court of equity, as incident to its jurisdiction over the subject matter, to construe the different parts of a will which affect such trust, where there is ambiguity or a disputed clause. In such case, the facts alleged disclose a trust which gives a court of equity jurisdiction, and enables it, as an incident of that jurisdiction, to give a construction to doubtful or disputed clauses in a will, when necessary to insure the due execution of the trust. As before stated, there are no facts alleged showing a trust for the benefit of plaintiffs. The will is set out, but it is not aided by any facts or suggestions disclosing a trust. Yet we are asked to give a construction to the will for the purpose of ascertaining whether it creates a trust, so that we must construe the will before we can know whether equity is authorized to exercise its jurisdiction in the premises.
2. The contention is that the language of the will, when properly interpreted, gives to Susan Edgar a life estate only, and that the fee descends to the heirs in trust for the purposes named. Ey this contention the trust is created by considering the words of the will wherein the testator declares that “if the real estate has not been disposed of at the death of my wife, it is my will that the same be sold and the proceeds thereof be equally divided between all my heirs,” as precatory, and therefore creating a trust. It treats the word “will” as an expression of a desire upon *69the part of the testator that his children, on the death of his wife, shall share alike in the proceeds of the land, and, as a deduction therefrom, that the estate descends to the heirs, burdened with a trust. This is but taking the will by its four corners, and construing it so as to create a trust, in order to give the court jurisdiction to construe such will. As the word “will” has been held to have an imperative force, and not to be classed among the precatory words, (McRee’s Administrators v. Means, 34 Ala. 364,) it should be regarded as a command or direction. Eut, if the word “will” be regarded as an obligatory direction by the testator that his estate be sold at the death of his wife, and the proceeds distributed among his heirs equally, it would be just as reasonable, especially in view of the whole will, upon the theory of the plaintiffs, that the will only gives a life estate to the wife, and no disposition being made of the fee, that it descended to the heirs unburdened with a trust, subject to be sold at the death of the wife, and its proceeds divided among such heirs, unless Susan Edgar and such heirs disposed of the estate before her death. There is authority for the proposition that where a testator directs his lands to be sold, without designating the person to sell, the executor takes the power by implication, and that it is not necessary that the fee should be in the executor to enable him to sell and convey the land: 18 Am. and Eng. Ency. 952, and notes. In this view there would be no trust. And the rule is well settled that where there is no trust an heir at law cannot come into a court of equity for the purpose of obtaining a judicial construction of the provisions of the will, and thus determine the title to real estate. The reason is that the decisions of such questions is purely legal, and equity will not assume jurisdiction to declare legal titles unless it has acquired jurisdiction of the case for some other purpose: Bowers v. Smith, 10 Paige, 193. On the other hand, it is *70by reason of the jurisdiction of equity over trusts that its courts, as an incident of such jurisdiction, take cognizance of and construe wills. But such courts do not take jurisdiction of suits brought solely for the construction of wills, or when legal titles are involved. In Bailey v. Briggs, 56 N, Y. 407, Folger, J., said: “It is when the court is moved in behalf of an executor, trustee, or cestui que trust, and to ensure .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. ” Manifestly, the complaint does not state facts which will give jurisdiction to a court of equity to entertain the case as one asking for a construction of the will.
3. Again, if it is the purpose of the suit to have the deeds decreed to be a cloud upon plaintiffs’ title, it cannot be maintained, as the complaint shows that the plaintiffs are out of possession and that their right to the possession is denied by Golden: Code, § 504.
We think there was no error, and the bill must be dismissed. Affirmed.