Ross v. Church

• Decision Date: 03 February 1914
• Citation: 90 A. 174,77 N.H. 592
• Parties: ROSS v. CHURCH.
• Court: New Hampshire Supreme Court

90 A. 174

77 N.H. 592

ROSS

v. CHURCH.

Supreme Court of New Hampshire. Grafton.

Feb. 3, 1914.

Exceptions from Superior Court, Grafton County; Peaslee, Judge.

Petition by Winfred S. Ross against Allen T. Church for construction of a will under which petitioner was residuary legatee. Petition dismissed, and petitioner excepts. Exception overruled.

Arthur L. Foote and Pierce & Galloway, all of Dover, for petitioner. Edgar W. Smith, of Wells River, Vt., for defendant.

PARSONS, C. J. As the plaintiff does not occupy a fiduciary position, entitling him for his protection to the prospective decision of questions that may arise under the will, and as the defendant, whom the plaintiff claims does occupy such a position, does not desire, but objects to, their present determination by way of advice to him, there is no ground upon which the court may lawfully advise the parties. Glover v. Baker, 76 N. H. 393, 83 Atl. 916; Day v. Washburn, 76 N. H. 203, 81 Atl. 474; Harvey v. Harvey, 73 N. H. 106, 59 Atl. 621; Drake v. True, 72 N. H. 322, 56 Atl. 749; Bailey v. McIntire, 71 N. H. 329, 52 Atl. 446; Ellis v. Aldrich, 70 N. H. 219, 222, 47 Atl. 95; Gafney v. Kenison, 64 N. H. 354, 10 Atl. 706; Greeley v. Nashua, 62 N. H. 166, 167; Opinion of the Justices, 62 N. H. 706; P. S. c. 207, § 8.

Exception overruled.

PEASLEE, J., did not sit. The others concurred.