Opinion
June 27, 1969.
PRESENT: Roberts, C.J., Paolino, Powers. Joslin and Kelleher, JJ.
1. CERTIFICATION. Case Not Ready for Final Judgment. In considering cause certified for determination and construction of indenture of trust and last will and testament, court determines that it is not ready for final judgment on question of whether there should be apportionment between executors and trustees of executors' commissions and attorneys' fees incurred or paid by the executors where there was an absence of probate court's approval of costs and fees. G.L. 1956, § 9-24-28, as amended.
2. SUPREME COURT. Certification of Trusts and Wills. Uncertainty of Need for Construction or Instructions. Supreme court will decline to act where assistance requested in certified cause refers to a problem which may never arise or will arise only in the indeterminate future. G.L. 1956, § 9-24-28, as amended.
CERTIFICATION of cause for determination and construction of indenture of trust and will, heard and court declines to act for reason stated in opinion.
W. Ward Harvey, for plaintiffs.
Corcoran, Peckham Hayes, Edward J. Corcoran, Joseph T. Houlihan, Joseph McLean Hall, Guardian ad litem, for William Faris Jelke and Thomas Batholomay Jelke and persons not ascertained or in being.
This cause was certified for our determination and construction of provisions of an indenture of trust and last will and testament of F. Bartholomay Jelke pursuant to the provisions of G.L. 1956, § 9-24-28, as amended. The certification of said indenture of trust and last will and testament poses for the consideration of this court alternative questions which the parties phrase as follows:
"A) Whether executors' commissions and attorneys' fees incurred or paid by the executors of the Estate of F. Bartholomay Jelke, deceased, should be apportioned between said executors and the trustees of the trust?"
"B) If the answer to the first question (A) is in the affirmative, then in what proportions or percentages should said commissions and fees be apportioned?"
An examination of the record discloses, however, that a construction of the various provisions of the instruments in question would have meaning only if and when the probate court for the city of Newport approves the costs and fees which the parties estimate are warranted.
Accordingly, the case is not ready for final judgment as required by § 9-24-28, as amended, Industrial National Bank v. Isele, 101 R.I. 734, 227 A.2d 203; Young v. Exum, 102 R.I. 232, 229 A.2d 780, and we will decline to act where the assistance requested is on a problem which may never arise or will arise only at some time in the indeterminate future. Alumnae Ass'n of Newport Hospital School of Nursing v. Nugent, 101 R.I. 26, 219 A.2d 763.