A. J. Mosely, who was the husband of Emma J. Fitzpatrick, exhibited his bill in chancery against Georgia Ann Roberts and her husband, Tillman Roberts, Angeline Williamson and her husband, Ben Williamson and Bridget Malone to obtain a construction of the will of Michael Fitzpatrick, who died testate on the 28th day of October, 1918. The will was probated in Duval County on March 19, 1923. Michael Fitzpatrick left surviving him his wife, Emma, who married A. J. Mosely in April, 1920.

The will contained the following clauses:

"I do hereby nominate, make, constitute and appoint my dearly beloved wife, Emma J. Fitzpatrick, now residing with me in Jacksonville, Duval County, Florida, should she survive me, to be executrix of this my last will and testament, and I do hereby authorize and empower her to manage, control, mortgage, sell and convey in fee simple all of my estate as and when she may consider for the best interest of herself, and of my estate.

"It is my will that my said wife, Emma J. Fitzpatrick, shall have and receive in fee simple all of my property, real, personal and mixed, of which I shall die seized and possessed, or to which I may be entitled at the time of my death.

"It is my will that if my said wife, Emma J. Fitzpatrick, should own, possess or be entitled to any of my said property at the time of her death, that upon her said death, my sister, Bridget Malone, now residing at 45 Spring St., Red Bank, New Jersey, shall have and receive in fee simple one-half of my said property owned by my said wife at the time of her death, and that my said wife's half sister, Georgia Ann Roberts, *Page 275 now residing at 904 Lackawanna Avenue, Jacksonville, Duval County, Florida, and Angeline Williamson, now residing at Pellum, Duval County, Florida, shall each have and receive in fee simple one-fourth of my said property owned by my said wife at the time of her death.

"It is my will that if my said wife, Emma J. Fitzpatrick, should survive my said sister, Bridgett Malone, and her said half sisters, Georgia Ann Roberts and Angeline Williamson, that the heirs at law of my said sister, Bridgett Malone, shall have and receive one-half of said property, and that the heirs at law of my said wife's half sister, Georgia Ann Roberts and Angeline Williamson, shall respectively have and receive one-fourth of my said property, which my said wife, Emma J. Fitzpatrick, shall own, possess or be entitled to at the time of her death."

The bill alleges that Michael Fitzpatrick died, "possessed and seized of certain personal property, and of certain real estate in Duval County, Florida, described as follows: "A" Lot Three (3), Block Five (5), bounded on the south by Highway Street; on the east by Lime Street; on the north by Lot Four (4) and on the west by Lot Two (2), all in said Block Five (5), said lot being in Lewisville, being in the Ross Grant, County and State aforesaid."

It is alleged in the bill that Mosely and his wife in 1925 executed a deed of conveyance to Francis P. L'Engle conveying a "portion of said premises." A copy of that deed is attached to the bill as exhibit "A" and by appropriate words made a part of it. That deed shows that the conveyance was of "Lot Four (4) in Block Five (5) of West Lewisville, according to plat thereof recorded in deed book "AJ," page 725, former public records of Duval County, *Page 276 Florida, and more particularly described as follows: beginning at the southwest corner of intersection of Lewis and Lime Streets; running thence west along the south line of Lewis Street a distance of 210 feet; thence at right angles south 210 feet; thence at right angles east 210 feet to the west side of Lime Street; thence at right angles and northerly along the west side of Lime Street to the point of beginning, said land being a square 210 feet on each side thereof."

It does not appear that the property described in that deed constituted any part of Lot 3, Block 5, of which it is alleged that Michael Fitzpatrick died seized and possessed.

The bill also alleges that in July, 1926, Mosely and his wife conveyed a "portion of the said premises" to Jack Mosely, who on the same day conveyed the same to A.D. Mosely. Copies of these two deeds of conveyance are attached to the bill of complaint and made a part of it. The land described in each of these deeds is a part of the southwest portion of "Lot 3 in Block 5, Lewisburg, being situated in the Ross Grant as described in deed from Turner J. Griffin to Michael Fitzpatrick, dated February 7th, 1883." The land is described as fronting south 37 feet on "Lackawanna Avenue" and running back northerly from that avenue 100 feet, its west side being the west line of Lot 3, Block 5.

There are no allegations in the bill that "Lewisville" and "Lewisburg" are one and the same village or subdivision; nor that "Highway Street" and "Lackawanna Avenue" are one and the same street; nor may the Court take judicial notice of it. See People v. Callahan, 23 Hund. (N.Y.) 581; Diggins v. Hartshorne,108 Cal. 154, 41 Pac. R. 283; Anderson v. Ocala, 67 Fla. 204, 64 So. R. 775, 52 L.R.A. (N.S.) 287. *Page 277

The latter deed shows the conveyance of the land from Jack Moseley to A. J. Mosely and not to A.D. Mosely, as the bill alleges. Although the bill alleges that A.D. Mosely is the complainant.

The bill alleges that certain differences have arisen between the complainant and the heirs at law of Michael Fitzpatrick as to the proper "construction and interpretation of said Last Will and Testament; as to the true intention of said testator as indicated and expressed in and by said will; and as to whom, under said will, the property of which said Michael Fitzpatrick died, seized and possessed, belongs."

The complainant contends that the widow of Fitzpatrick acquired under the will the fee simple title to the property described while others named in the will say that she acquired only a life estate. If she acquired a fee simple title, her husband, the complainant, whom she subsequently to the death of Fitzpatrick married, acquired the title as there were no children of the second marriage and he survived her.

All of the defendants answered that they desired a construction of the will by the court.

The complainant claims title to a portion of the property described in the will under a conveyance from Jack Mosely, to whom the widow of Fitzpatrick and her husband, the complainant, had conveyed it. The bill sets up no claim of title to the remainder of the lot by the complainant as survivor of his wife, Emma Fitzpatrick-Mosely. The other parties to the cause set up no claim to the lot or any portion of it as heirs or devisees of the residuary interest.

The cause, as presented by the bill and answer, is merely one in which the court is asked to construe the will upon the request of persons who may have no duty whatsoever to *Page 278 perform under its terms. The claim, if any is asserted by either of the parties, is to purely legal titles in the real property devised. There exists no separate or independent ground of equitable jurisdiction. The complainant has no trust to perform under the terms of the will; he is not executor nor administrator de bonis non cum testmento annexo but is merely interested as claimant of the title to a part of the lot under a deed of conveyance from Jack Mosely and as sole heir of his deceased wife as to the remainder of the lot. The persons named as devisees appear to assert no title whatsoever but think they may have title as residuary legatees.

The only question presented is one of law which may be determined in ejectment. Even in states where the statute authorizes courts of equity to construe wills the statutes are held to be merely declaratory of the inherent jurisdiction of courts of equity and to not authorize such courts to entertain suits which could not have been entertained by the old courts of chancery. There is in the case no real bona fide question for controversy involved as between the parties, but it presents a mere abstract or experimental question. The bill prays for no specific relief but only for a declaration of the rights of the parties. There is no fiduciary relation between the parties, no trust to discharge, no separate or independent ground of equity jurisdiction.

The court, however, took jurisdiction of the cause and proceeded to its final decree holding that Emma J. Fitzpatrick took title to the land described in fee simple and that the fourth and fifth paragraphs of the will were void; that the complainant, A. J. Mosely, inherited from his wife, Emma J. Fitzpatrick-Mosely the title to the land as her sole heir at law. *Page 279

Chapter 7857, Acts 1919, now constituting Sections 4953-4954, Comp. Gen. Laws, constitutes the only authority for the entering of declaratory decrees by any court of equity in this State having equity jurisdiction for the determination of any question of construction arising under a deed, will, contract in writing or other instrument in writing.

From the decree entered by the chancellor, Georgia Ann Roberts, Angeline Williams and their husbands and Bridget Malone appealed.

The decree entered by the chancellor was in its last analysis merely a finding that the legal title to the property described was in the complainant and declaring the quantum of his estate. A matter of which the courts of law have jurisdiction and which should be determined in an action of ejectment.

No condition exists in the case under which the old courts of chancery would have taken jurisdiction. No necessity for judicial construction appears such as the possession of funds for distribution to the legatees under the construction contended for. Corry v. Fleming, 29 Ohio St. 147; Bussy v. McKie, 2 McCord, Ed. (S.C.) 23, 16 Am. Dec. 628; Buskirk v. Ragland, 65 W. Va. 749, 65 So. E. R. 101.

It does not appear that a due administration of the estate required the construction. Siddall v. California, 73 Cal. 560, 15 Pac. R. 130; Mansfield v. Mansfield, 203 Ill. 92, 67 N.E. R. 497; Peverly v. Peverly, 173 Mass. 203, 53 N.E. R. 395; Austin v. Bailey, 163 Mass. 270, 39 N.E. R. 1022; Rexroad v. Wells,13 W. Va. 812.

The complainant has no duty to perform under the will and no interest under it to protect. The complainant merely seeks the court's opinion as to the legal title of the land described which was devised by the testator to his *Page 280 wife from whom the complainant inherited some years later. Buskirk v. Ragland, supra. Beard v. Beard, (N.J. Eq. 1906), 63 Atl. R. 25.

If the purpose of the statute, Chapter 7857 Acts 1919, Sees. 4953-4954 Compiled General Laws, supra, was to transfer to a court of equity the jurisdiction of the Circuit Court at law in a proceeding in ejectment to try the title to real estate the act would infringe upon constitutional limitations. See Wiggins v. Williams, 36 Fla. 637, 18 So. R. 859.

While the Legislature may expand the powers of a court of chancery it may not do so where a constitutional right is infringed. See Hughes v. Hannah, 39 Fla. 365, 22 So. R. 613.

It is true that the defendants submitted themselves to the jurisdiction, or attempted to do so, but the power to enter a declaratory decree is derived from the statute and not from the voluntary action of the defendants. Consent cannot give jurisdiction of subject matter.

We hold that the statute is merely declaratory of the power which courts of chancery have always exercised and attempts to confer no power beyond that to declare the court's opinion upon a question that may arise and be properly determined in a court of law. That the chancery court has no jurisdiction merely to express an opinion respecting legal title to real estate upon an application such as the one at bar for a construction of a will.

The case of Shelden v. Powell, 99 Fla. 782, 128 So. R. 258, is not in point because in that case the will of C. A. Young contained a provision bequeathing fifteen thousand dollars to the S. Cornelia Young Memorial Library at Daytona Beach. The executor of the will declined to release the legacy to Powell and others who "constituted" the "S. Cornelia Young Memorial Library" unless they *Page 281 would execute a bond for the executor's protection. Thereupon Powell and others brought a suit against the executor in equity "praying for an adjudication of their rights under and by virtue of the terms of the said will." The constitutionality of Chapter 7857 Acts of 1919 Laws of Florida (Sections 4953 and 4954 C. G. L. 1927) was attacked by demurrer.

On final hearing the demurrerr which was incorporated in the answer was overruled and a "decree in favor of complainants" was entered. Sheldon as executor appealed. There existed in that case a separate or independent ground of equitable jurisdiction. The executor of the will had a trust to perform under the terms of the will; the complainants asserted a right to the legacy; the executor had possession of funds for distribution to the legatees under the construction contended for by the complainants; the administration of the estate was not complete; a due administration of the estate required construction of the will and the executor had a duty to perform under it.

In the case at bar none of these conditions existed. In the majority opinion the court holds that the estate was devised by the testator to his wife with power of disposition and that which she did not dispose of and held at her death passed under the will to his sister Bridget and his two half sisters, Georgia Ann Roberts and Angeline Williamson.

Now, if Mosely should take possession of the property notwithstanding the decree of this Court and the successful parties should bring their action of ejectment to recover possession, or if they should take possession after this decree is made and Mosely should bring ejectment to recover possession under the will they would be in either case confronted by a decree in equity deciding the title to the land. A decree binding upon them although rendered *Page 282 in no case or controversy and in which no duty or responsibility devolved upon either party under the will and when the estate of the testate was administered and no further duty devolved upon any one to conclude.

In the Sheldon-Powell case, supra, the act was applicable. In the case at bar it has no application what so-ever.

If the decree in this case is binding between the parties as an adjudication of title to the land in controversy it is because the legislature has power to confer that jurisdiction upon a court of equity notwithstanding the constitution secures to one the right of trial by jury and the action to try title is one at law and not in equity. If the decree is not binding between the parties the procedure is utterly futile to the point of absurdity.

There is no analogy between the action of ejectment to try title to land and a bill in chancery to remove a cloud or to quiet title. The differences are elemental.

As the chancery court had no jurisdiction to render the decree it should be reversed with directions to dismiss the bill.