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Dickey v. Herbin

Filed: May 20, 1959.

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, PEARL TROXLER, PAUL TROXLER AND HIS WIFE, LENORA TROXLER, FLOYD LUCAS TROXLER AND HIS WIFE, CORNELIA TROXLER, AND IRVEN TROXLER AND HIS WIFE, CORNELIA TROXLER, FRANCES T. SMITH AND HER HUSBAND, B. A. SMITH, MYRTLE T. MORGAN AND HER HUSBAND, JACK MORGAN, ROLAND LYMAN TROXLER AND HIS WIFE, LILLIAN WEBSTER TROXLER, VESTA PEARL TROXLER REEL AND HER HUSBAND, EDWIN L. REEL, ROBERT SAMUEL TROXLER, JR., AND HIS WIFE, MILDRED KILGORE TROXLER, WILLIAM FINCH TROXLER AND HIS WIFE, MARION PITTMAN TROXLER, VIRGINIA FRANCES TROXLER CLODFELTER AND HER HUSBAND, JOHN D. CLODFELTER, OLA COLEMAN AND HER HUSBAND, EDWARD COLEMAN, ROSIE ANDERSON AND HER HUSBAND, GROVER ANDERSON, RUTH THOMPSON (WIDOW), ANNIE KIZIAH AND HER HUSBAND, J. F. KIZIAH, ELZORAH WINN AND HER HUSBAND, HUGH WINN, ODELL BARBER AND HIS WIFE, ORTANEY BARBER, ROBERT BARBER AND HIS WIFE, RUTH BARBER, GEORGE BARBER AND HIS WIFE, GLADYS BARBER, HOYLE BARBER AND HIS WIFE, WILMA BARBER, G. O. DECKEY AND HIS WIFE, WILLARD K. DICKEY, ROSS BRIGGS AND HIS WIFE, LELIA BRIGGS, KATIE SUMMERS (WIDOW), ROBERT L. SUMMERS, JR. (SINGLE), WILLIAM VIRGIL SUMMERS (SINGLE), CLARENCE ERWIN SUMMERS AND WIFE, BOBBY JEAN SUMMERS, DONNIE F. SUMMERS AND WIFE, CELIA SUMMERS, RAYMOND T. SUMMERS AND WIFE, NORMA SUMMERS, VIRGINIA SUMMERS PAYNE AND HUSBAND, JOHN HENRY PAYNE



Appeal by Lacy Dickey, executor of the will of L. F. Troxler, deceased, from Armstrong, J., February 23 Civil Term, 1959, of Guilford, Greensboro Division.

Moore, J.

Moore

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, 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, 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. 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 right 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) page 76. "A party aggrieved is one whose right has been directly and injuriously affected by the action of the court." McIntosh, N.C. Prace. and Proc. in Civil Cases, pp. 767-8; 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 ...


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