ROSS v. CHURCH, 77 N.H. 592 (1914)

90 A. 174

WINFRED S. ROSS v. ALLEN J. CHURCH.

Supreme Court of New Hampshire Grafton.
Decided February 3, 1914.

PETITION, by a residuary legatee, for advice as to the meaning of a will. At the October term, 1913, of the superior court, the petition was dismissed by Peaslee, J., upon the ground that the legatee was not entitled to advice, and he excepted.

Pierce Galloway and Arthur L. Foote (Mr. Pierce orally), for the plaintiff.

Edgar W. Smith, for the defendant.

Page 593

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; Day v. Washburn, 76 N.H. 203; Harvey v. Harvey, 73 N.H. 106; Drake v. True, 72 N.H. 322; Bailey v. McIntire, 71 N.H. 329; Ellis v. Aldrich, 70 N.H. 219, 222; Gafney v. Kenison, 64 N.H. 354; Greeley v. Nashua, 62 N.H. 166, 167; Opinion of the Justices, 62 N.H. 706; P. S., c. 207, s. 8.

Exception overruled.

PEASLEE, J., did not sit: the others concurred.