Bailey v. McIntire

52 A. 446, 71 N.H. 329, 1902 N.H. LEXIS 32

Opinion

Walker, J.

The plaintiffs’ contention, that Mary has a life estate in the land, devised to her, with the right to dispose of it by deed whenever she may deem it necessary to do so “ for her comfort, maintenance, and support,” does not appear to be disputed, and may be a correct statement of the testator’s intention. But it is not the province of the court to determine the validity of Mary’s title, which is derived not from the executors but from the testator, and with reference to which the executors have no duty to perform. A prospective decision of the question suggested, whether in accordance with, or against, the plaintiffs’ claim, would not aid the executors in the performance of a fiduciary duty imposed upon them in their official capacities. They have no such interest in the determination of that question as to require the advice of the court. Greeley v. Nashua, 62 N. H. 166; Gafney v. Kenison, 64 N. H. 354; Ellis v. Aldrich, 70 N. H. 219, 222; Carr v. St. Paul’s Parish, ante, p. 231.

Qase discharged.

All concurred.