Decided December 26, 1907.
The jurisdiction of the court to advise an executor as to his duties will not be exercised during the pendency of proceedings in the probate court for a re-examination of the will.
BILL IN EQUITY, for the construction of the will of Mary S. Durell. Transferred from the February term, 1907, of the superior court by Wallace, C.J.
Daniel Hall, for the plaintiff.
Arthur O. Fuller, specially, for Edward Gebhard.
It appears that the will was duly proved in common form in March, 1907, that in April, 1907, the defendant, Edward Gebhard, an heir of the testatrix, filed a petition in the probate court asking for a re-examination of the probate of the will, and that this petition is still pending. The court is, therefore, asked to construe the provisions of a document purporting to dispose of the property of the deceased, while proceedings are pending which may show that its execution was invalid, and that the plaintiff has no title to the estate as executrix and no trust duties to perform. It does not appear that the advice sought will be of use to the plaintiff in the discharge of official duties. In such a case the court will decline to comply with the request for instructions. As held in Carr v. St. Paul's Parish, 71 N.H. 231, the jurisdiction of the court to advise in the administration of a trust is not ordinarily exercised unless the advice is necessary for the protection of the trustees.