After the appeal from tbe judgment of tbe Superior Court in this action bad been docketed in this Court tbe defendant, S. G. Finley, moved that both tbe appeal and tbe action be dismissed, for tbe reason that tbe facts alleged in tbe complaint are not sufficient to constitute a cause of action of which tbe Superior Court of Wilkes County bad jurisdiction. This motion was in effect a demurrer ore tenus to tbe complaint on these grounds. Tbe defendant by filing an answer to tbe complaint in tbe Superior Court did not waive bis right to demur ore tenus to tbe complaint on tbe ground that tbe court bad’ no jurisdiction of tbe action and that tbe complaint does not state facts sufficient to constitute a cause of action. C. S., 518.
It is too well settled to require tbe citation of authorities that tbe want of jurisdiction and tbe failure of tbe complaint to state facts sufficient to constitute a cause of action on which tbe plaintiff is entitled to relief, cannot be waived and may be taken advantage of by demurrer ore tenus to tbe complaint at any time, even after answer filed, and even in tbe Supreme Court, after an appeal has been docketed in said Court from a judgment of tbe Superior Court in tbe action. Power Company v. Peacock, 197 N. C., 135, 150 S. E., 510.
It appears from tbe allegations of tbe complaint in tbe instant case that tbe plaintiff, J. R. Finley, as executor of tbe last will and testament of J. T. Finley, deceased, has practically completed tbe administration of tbe estate of bis testator. He has paid to each of tbe legatees named therein bis or ber share of tbe personal property owned by tbe testator at bis death, and bequeathed to bim or to ber by tbe said last will and testament. He seeks no advice from tbe court as to tbe performance of bis duties as executor. After bis qualification as executor, tbe devisees *4named in the last will and testament of bis testator, executed a power of attorney by which they authorized and empowered the said J. R. Finley to sell and convey the land devised to them by the testator. He now has in hand the proceeds of sales made by him under this power of sale. A controversy has arisen among the devisees as to whether each devisee took an indefeasible estate in his or her share of the land devised by said last will and testament, or whether he or she took only a defeasible fee in his or her share. This controversy involves a construction of the provisions of the last will and testament. The plaintiff, J. R. Finley, as executor, however, has no interest in this controversy; he has no duty to perform as executor, which requires a determination of the question involved in the controversy. •
In Mountain Park Institute v. Lovill, 198 N. C., 642, 153 S. E., 114, it is said: “It is well settled that an executor upon whom the will casts the performance of a duty may, when he needs instruction, bring a suit in equity to obtain a construction of the will. Bank v. Alexander, 188 N. C., 667; Trust Co. v. Stevenson, 196 N. C., 29; Dulin v. Dulin, 197 N. C., 215. In such case the jurisdiction is incident to that of trusts. Courts of equity do not exercise advisory jurisdiction if no trust has been created, or if the estate is a legal one, or if the question of construction is purely legal. Tayloe v. Bond, 45 N. C., 5; Alsbrook v. Reid, 89 N. C., 151; Cozart v. Lyon, 91 N. C., 282; Reid v. Alexander, 170 N. C., 303; Herring v. Herring, 180 N. C., 165.”
In Heptinstall v. Newsom,, 146 N. C., 504, 60 S. E., 516, both the appeal to this Court and the action were dismissed. This was an action brought by one of the devisees of the testator against such of the other devisees as were in esse, for the purpose of obtaining a construction of the will as to devises of real estate, and to determine what estates some of the devisees took under the will. Brown, J., writing the opinion for the Court, says: “We cannot recognize the'regularity of this proceeding nor the jurisdiction of the court to entertain it. It seems to be predicated upon the idea that a court of equity has a sweeping jurisdiction in reference to the construction of a will, which, under the authorities, is an erroneous one. Tyson v. Tyson, 100 N. C., 368; Cozart v. Lyon, 91 N. C., 282. The jurisdiction in matters of construction is limited to such as are necessary to the present action of the Court. The Court will not undertake to construe a 'devise in a proceeding of this character, for the rights of devisees are purely legal and must be adjudged when a cause of action arises.”
It does not appear in the instant case that any cause of action has arisen which requires or would justify the court in rendering a judgment by which the rights of the parties would be determined. Indeed, it does appear that if and when a cause of action shall arise which may *5require a judicial construction of tbe provisions of tbe last will and testament of J. T. Finley, deceased, witb respect to tbe quality of tbe estate wbicb each of tbe devisees took in tbe land devised, persons not now in esse, and purchasers of said land claiming under parties to tbis action, may be necessary parties.
Tbe appeal and tbe action are
Dismissed.