Head v. Phillips , 70 Ark. 432 ( 1902 )

Hughes, J.,

(after stating the facts.) It has been several times held by this court that where lands are claimed by another and held adversely, a suit in equity for partition will not lie. The remedy is in ejectment to settle the title, before a bill for partition can be maintained. The remedy by ejectment is complete and adequate. The will can be construed in a suit by ejectment, and the title settled. Moore v. Gordon, 44 Ark. 334; Criscoe v. Hambrick, 47 Ark. 235; London v. Overby, 40 Ark. 155.

The will in this case bequeathed a legal title only. “So far as a will of real property bequeaths purely legal estates, and the devisees therein obtained purely legal title to the land given, the enforcement thereof belongs to the courts of law bjr means of the action of ejectment; the courts of law have Ml power to control and interpret the instrument and to determine the rights of the devisees; there is no necessity, and therefore no power, of resorting to a court of equity in order to obtain a construction of such wills.” 3 Pomeroy, Eq. Jur. § 1155. “The special equitable jurisdiction to construe wills is simply an incident to the general jurisdiction over trusts. * * * A court- of equity will never entertain a suit brought solely for the purpose of interpreting the provisions of a will without any further relief, and will never exercise a power to interpret a will which only deals with legal estates or interests, and which makes no attempt to create any trust relations with respect to the property donated. * * * It is by reason of the jurisdiction of courts of chancery over trusts that courts having equitable powers, as an incident of that jurisdiction, take cognizance of and pass upon the interpretation of wills. They do not take jurisdiction of actions brought solely for the construction of instruments of that character, nor when only legal titles are in controversy.” 3 do. § 1156.

As only a legal title was bequeathed by the will, without the creation of any trust, equity had no jurisdiction.

The demurrer was properly sustained.

Affirmed.