Opinion
01-18-1906
BEARD v. BEARD et al.
Aaron R. Johnston, for complainant. Chas. E. Hendrickson, Jr., for infant defendants.
Suit by Maud Howard Beard, as executrix of the will of Francis D. Beard, deceased, against Hope Beard and others. Bill dismissed.
Heard on bill, answers, replication, and proofs in open court.
This is a bill filed by Maud Howard Beard, as sole executrix and sole legatee of Francis D. Beard, deceased, asking for a construction of the will of Francis D. Beard. The defendants are the four minor children of Francis D. Beard and the complainant.
The material part of the will is in the following language:
"I give, devise, and bequeath, all of my property, both real and personal, of whatever kind and nature, and wheresoever situate, to my wife, Maud Howard Beard, and hereby appoint her sole executrix of this my will."
Francis D. Beard, the testator, died on the 25th day of April, 1901. The will is dated April 22, 1901.
Three of the children of the testator and the complainant were born prior to his death. One of the children of the parties, namely, Hope Beard, was born on the 7th day of November, 1901.
The bill sets out that the real estate left to the complainant by her husband is unprofitable to her, that she is receiving no income from it, and that there is considerable expense attached to it, and that she desires to relieve herself of the burden and care of it and to sell the same; that, in negotiating for its sale, the question arose of the effect upon the complainant's title to the said property of the birth of the said child, Hope Beard, after the making and publishing of the will.
The complainant charges that her husband, the testator, knew that she was pregnant at the time of making the will, and that it was his purpose and intention to exclude the unborn child, and that such is the effect of the will; but that it may be claimed upon behalf of the said Hope Beard, the child born after the execution of the will, that she shall succeed to some portion of the estate of the said Francis D. Beard, and that it may be claimed on behalf of her other three children, born previous to the father's death, that as heirs at law of the said Hope Beard, or otherwise they have an interest in the said land.
The complainant charges that none of the children have any interest in any of the property, real or personal.
The complainant states her desire to have the meaning of the last will and testament of Francis D. Beard, in its application to the real estate of the said testator, considered and determined in this court. The prayer of the bill is "that the said last will and testament of Francis D. Beard may be construed under the circumstances of this ease and the effect of the birth of Hope Beard, after the making and publishing of said last will and testament, upon the title of your oratrix in said lands and premises be determined, and what interest, title, and property your oratrix has in said lands may be determined, and what interest, if any, the said children, or either of them, have in said premises may be determined.
The clerk of the court was constituted guardian ad litem of the children, and a formal answer was filed.
Aaron R. Johnston, for complainant. Chas. E. Hendrickson, Jr., for infant defendants.
GARRISON, V. C. (after stating the facts). As will be seen by a reference to the preceding statement of facts, the sole object of this bill is to determine who has now the legal title of the real estate owned by Francis D. Beard at the time of his death.
The executrix of the will asks for no instructions concerning her duty under the will, and there is no aspect of the case requiringthe consideration of any trust, or the giving of any instructions respecting any trust. No equitable relief of any sort is sought. Under these circumstances, it is perfectly clear that this court has no jurisdiction merely to express an opinion respecting legal title of real estate. Torrey v. Torrey, 55 N. J. Eq. 410, 36 Atl. 1084 (Grey, V. C. 1807); Fahy v. Fahy (N. J. Ch.) 42 Atl. 726 (Stevens, V. C. 1809); Hoagland v. Cooper, 65 N. J. Eq. 407, 56 Atl. 705 (Magie, Ch. 1905); Bevans v. Bevans (N. J. Ch.) 59 Atl. 896 (Magie, Ch., 1905).
I will advise a decree dismissing this bill, with costs.