Dickey v. Herbin

Annotate this Case

108 S.E.2d 632 (1959)

250 N.C. 321

Lacy DICKEY, Executor of the Estate of L. F. Troxler, Deceased; Lacy Dickey, Individually, and his wife, Gladys K. Dickey, v. Amanda T. HERBIN (widow), Joe Troxler and his wife, et al.

No. 604.

Supreme Court of North Carolina.

May 20, 1959.

*634 John D. Xanthos, Burlington, and Rufus W. Reynolds, Greensboro, for Lacy Dickey, executor, appellant.

Thomas C. Carter and John H. Vernon, Burlington, for appellees.

MOORE, Justice.

It is clearly apparent that the rulings of the court below to which the executor excepts are not adverse to the interests of the L. F. Troxler estate, but are adverse to Lacy Dickey, individually, and the other residuary legatee and devisee. In the trial below the executor contended, and contends here, that the lapsed devises and legacies of R. L. Summers should not go intestate, but should go to the surviving residuary legatees and devisees, namely, Lacy Dickey and Grover O. Dickey. He further contends that if they do go intestate, that the debts and costs of administration should be paid from the intestate estate and not from the cash. A reversal of the rulings excepted to would benefit Lacy Dickey, individually, and not the estate he represents as executor. The parties adversely affected by the judgment, Lacy Dickey, individually, and Grover O. Dickey, did not appeal, and we must conclude that they are satisfied with the judgment.

The following question arises: Is the executor a party aggrieved so as to give him the right to appeal in this case? It is true that the appellees have made no motion to dismiss on the ground that the executor is not a party aggrieved. But where it appears that the appellant is not a party aggrieved, *635 the questions raised by the appeal are not in controversy so far as the litigation is concerned, no jurisdiction of any matter to which the action relates is conferred by the appeal, and this Court will ex mero motu dismiss the appeal. In Langley v. Gore, 242 N.C. 302, 87 S.E.2d 519, 520, the appellants asserted that they did not claim a fund in the hands of the clerk of the Superior Court but had appealed on the ground that they did not think the appellees were entitled to it. Speaking to the subject, the Court said: "Any party aggrieved may appeal in the cases prescribed in Chapter 1 of General Statutes entitled `Civil Procedure.' G.S. § 1-271. And this Court, in interpreting and applying this statute, has uniformly held that only the party aggrieved may appeal from the Superior Court to the Supreme Court. See Watkins v. Grier, 224 N.C. 339, 30 S.E.2d 223, and numerous other cases. Therefore, we are constrained to hold that by this appeal this Court has not acquired jurisdiction of any matter to which the action or proceeding may relate. Such being the case, the Court is impelled ex mero motu to dismiss the appeal for want of jurisdiction. See Henderson County v. Smyth, 216 N.C. 421, 5 S.E.2d 136, where prior cases are cited. See also Baker v. Varser, 239 N.C. 180, 79 S.E.2d 757, and cases cited."

It is true that this action was brought under the Uniform Declaratory Judgment Act, General Statutes of North Carolina, Chapter 1, Article 26, sections 1-253 to 1-267, inclusive. The pertinent portion of G.S. § 1-255 provides that "Any person interested as * * * an executor * * * in the administration of * * * the estate of a decedent * * * may have a declaration of rights or legal relations in respect thereto: (a) To ascertain any class of creditors, devisees, legatees, heirs, next of kin or others; or (b) To direct the executors, administrators, or trustees to do or abstain from doing any particular act in their fiduciary capacity; or (c) To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings."

There is no doubt that the executor had the right to institute the action and ask for a declaration in the first instance. First Security & Trust Co. v. Henderson, 226 N.C. 649, 39 S.E.2d 804. The question is whether he may now appeal from a judgment of a court of competent jurisdiction which has declared his rights and duties and interpreted the will in such manner that the testator's estate is not adversely affected. G.S. § 1-258, which is a part of the Uniform Declaratory Judgment Act, provides that "All orders, judgments and decrees under this article may be reviewed as other orders, judgments and decrees." Obviously the act does not enlarge the rights of an executor for a review, but provides for review under the same rules that apply in cases not brought pursuant to the act.

Under the decisions of this Court, interpreting G.S. § 1-271, only a party aggrieved may appeal to the Supreme Court. Langley v. Gore, supra, and cases there cited; 1 N.C. Index (Strong) 76. "A party aggrieved is one whose right has been directly and injuriously affected by the action of the court." McIntosh, N.C. Prac. and Proc. in Civil Cases, pp. 767-768; Freeman v. Thompson, 216 N.C. 484, 5 S.E.2d 434.

"As a general rule, a personal representative can appeal in his representative capacity only when he is aggrieved in that capacity, and not when he is aggrieved in his individual capacity only. In the latter case he must appeal, if at all, in his individual capacity. He cannot appeal individually if he is aggrieved in his representative capacity only. * * * An executor or administrator may not secure review of a judgment, order, or decree merely determining the rights as between the parties entitled to the estate or distributing the estate or a part thereof among heirs, next of kin, devisees, or legatees where the court had jurisdiction, unless there are exceptional circumstances taking the case out of the general rule, *636 * * *." 4 C.J.S. Appeal and Error § 193 b and e, pp. 583-585.

Where there is a controversy between legatees under a will, in which controversy the executor, as such, has no interest, such executor is not a party aggrieved by a decree of distribution and may not appeal therefrom. In re Babb's Estate, 1927, 200 Cal. 252, 252 P. 1039.

In Surratt v. Knight, 1932, 162 Md. 4, 158 A. 1, 2, there was a caveat to a will. The will was sustained, but the heirs and the residuary legatees compromised their claims. The executor refused to recognize the agreement, asked the court of equity to construe the will and pass upon the validity of the compromise agreement. The court upheld the agreement and dismissed the action. The executor noted an appeal. The Court of Appeals declared: "An executor is the personal representative of the testator, and, after probate, is charged with the duty to defend and maintain the validity of the instrument with loyalty and fidelity, and to complete the administration of the estate in accordance with the terms of the will, under the law. * * * (A)fter the dismissal by the chancellor, the executor had no personal interest in further litigation. There is no question affecting the proceeds of the testator's estate in his hands for distribution, no doubt of who the residuary legatees are, nor of their identity and of their capacity to take. The executor's commissions and allowances are not involved, and he has no interest in the fund to be divided. Every one but the executor is satisfied, and no one has united in the appeal. It does not appear from the record that the executor has in any capacity such an interest in the subject-matter as entitles him to appeal, and therefore this appeal must be dismissed." See also Hetzell v. Morrison, 1945, 115 Ind.App. 512, 60 N.E.2d 150.

An executor who is also a devisee or legatee may not appeal as executor to protect his personal interest as against other devisees, legatees or claimants when there has been no judgment adverse to the estate.

In an Ohio case, an administrator appealed from an order of distribution. He claimed all of the funds individually. The Court said: "The administrator was not prejudiced by the order of the Probate Court directing the distribution of the fund, and his whole interest in objecting to the distribution was a personal interest. The record shows all parties are satisfied with the order of distribution, and none of them has appealed. The administrator cannot represent them in the appeal. The administrator seeks by his appeal from the Probate Court to advance his personal interests to the disadvantage of all other parties. This, he cannot do." In re Hoffman's Estate, 1941, 68 Ohio App. 47, 37 N.E.2d 646, 647.

"An executor of an estate as such cannot appeal from the decision of the trial court refusing to approve his original final report, to which exceptions were filed by other legatees, where the rulings were for the benefit of the estate, and the only relief sought by the appeal was on behalf of the executor as an individual legatee." (Headnote.) It is apparent that by this proceeding Alexander J. Wiley is seeking to advance his individual interests, which directly conflict with the trust which, as executor, it is his duty scrupulously to protect. If he feels that he has suffered any injustice in this matter, it can be only because he has been denied that which he sought for his own personal benefit." Wiley v. Wiley, 1919, 69 Ind.App. 431, 122 N.E. 25.

It is true that G.S. § 1-63 provides that "An executor * * * may sue without joining with him the person for whose benefit the action is prosecuted." This section is a part of Article 6, Chapter 1, relating to parties. But it will be observed that the Uniform Declaratory Judgment Act requires all persons to be made parties who have or claim any interest. G.S. § 1-260. Therefore, G.S. § 1-63 has no application in this case. The administrator or executor must remain impartial as between the conflicting claims of those entitled to the estate. The case of Finley v. Finley, 201 N.C. 1, 158 S.E. 549, involved a controversy among the devisees under *637 the will. The holding of this Court is well stated in the second headnote as follows: "The Court will not construe the provisions of a will in an action brought by an executor unless for the purpose of aiding him in the administration of the estate, and where suit is brought by an executor to settle a dispute among the devisees as to the quality of the estate devised, and the lands have already been sold and the proceeds are in the hands of the executor for distribution, the action and the appeal from the judgment of the lower court will be dismissed." See also Gregg v. Williamson, 246 N.C. 356, 98 S.E.2d 481; Summerlin v. Morrisey, 168 N.C. 409, 84 S.E. 689; Strauss v. Carolina Interstate Building & Loan Ass'n, 118 N.C. 556, 24 S.E. 116.

In the instant case the appellant may not represent the devisees and legatees against the heirs at law and next of kin. He was not a party aggrieved, and the appeal must be dismissed.

The costs of the appeal, including attorneys' fees incident to the appeal, are not proper charges against the estate of L. F. Troxler. Summerlin v. Morrisey, supra; Surratt v. Knight, supra.

Appeal dismissed.