Austin v. Bailey

• Decision Date: 02 March 1895
• Parties: AUSTIN v. BAILEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

163 Mass. 270

39 N.E. 1022

AUSTIN v. BAILEY.

Supreme Judicial Court of Massachusetts, Middlesex.

March 2, 1895

COUNSEL

John S. Patton, for petitioner.

L Roger Wentworth, for respondent.

OPINION

FIELD C.J.

This is a petition for the construction of the will of Jane Manning. The petitioner claims, under the fourth article of the will title in fee simple to the whole of certain real estate in Somerville; Timothy Manning, the husband of the testatrix having died on August 7, 1893. The respondent claims title to two undivided third parts of said real estate under the same article of the will, having purchased the interest of Timothy Horrigan and of Annie M. Horrigan in said estate. The respondent is in possession of the property. It is plain that this is not a case in which the petitioner has any duties to perform under the will, or where she needs the instruction of the court as to any duties arising in the administration of the estate of Jane Manning. So far as appears, the dispute does not in any way concern the administration of that estate. See Healy v. Reed, 153 Mass. 197, 26 N.E 404. The whole question in the case relates to the extent of the title of the parties to the real estate of which the respondent is in possession. Both parties derive their titles under the will of Jane Manning, but this does not entitle either to ask this court by petition for instructions upon the proper construction of the will. This would be manifest if this petition were regarded as a bill in equity asking for instructions; but it is said that it may be regarded as a petition, under Pub.St. c. 127, § 34. See St.1891, c. 415, § 5. We are of opinion that this section of the Public Statutes must be confined to matters and questions necessary to be determined in the administration of estates under wills. Under this petition we cannot give to the petitioner any effective remedy to recover possession of the real estate, or of any part of it to which we may think she is entitled. The position of the parties is much the same as if they claimed title under a deed the construction of which is in doubt. The true remedy of the petitioner is by writ of entry, in the trial of which it would be necessary to determine the meaning of this article of the will. But as the parties have fully argued the somewhat difficult question as to the construction to be given to the clause of the will under which they both claim title, and...