Dickey v. Herbin, 604

Citation250 N.C. 321, 108 S.E.2d 632
Case DateMay 20, 1959
CourtUnited States State Supreme Court of North Carolina

Page 632

108 S.E.2d 632
250 N.C. 321
Lacy DICKEY, Executor of the Estate of L. F. Troxler,
Deceased; Lacy Dickey, Individually, and his wife,
Gladys K. Dickey,
Amanda T. HERBIN (widow), Joe Troxler and his wife, et al.
No. 604
Supreme Court of North Carolina.
May 20, 1959

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,

Page 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[250 N.C. 325] 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...

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24 cases
  • Entwistle v. Covington, 461
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • May 20, 1959
    ...v. Webb, 62 N.C. 1, 93 Am.Dec. 599; Twitty v. Martin, 90 N.C. 643; Battle v. Lewis, 148 N.C. 142, 61 S.E. 634; Wooten v. Hobbs, 170 N.C. [250 N.C. 321] 211, 86 S.E. 811; Reid v. Neal, 182 N.C. 192, 108 S.E. 769; Daniel v. Bass, 193 N.C. 294, 136 S.E. In 96 C.J.S. Wills § 1216, page 1053 et ......
  • Waters v. Qualified Personnel, Inc., s. 40
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • January 24, 1978
    ...should dismiss the appeal 1 even though the question of appealability has not been raised by the parties themselves. Dickey v. Herbin, 250 N.C. 321, 108 S.E.2d 632 (1959); Rogers v. Brantley, 244 N.C. 744, 94 S.E.2d 896 (1956); Morse v. Curtis, 6 N.C.App. 620, 170 S.E.2d 491 (1969). Conclud......
  • Yount v. Yount, 310
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 12, 1962
    ...of Mrs. Stevens and Mrs. Yount (the subjects of assignments of error Nos. 2 and 3), and they may not appeal therefrom. Dickey v. Herbin, 250 N.C. 321, 108 S.E.2d 632; Ferrell v. Basnight, 257 N.C. 643, 127 S.E.2d Page 616 Petitioners, as the executors named in the codicil, are interested in......
  • Alston v. Gray, 152
    • United States
    • Court of Appeals of Maryland
    • September 1, 1984
    ...In re Estate of McCabe, 11 Ariz.App. 555, 466 P.2d 774 (1970); Wiley v. Wiley, 69 Ind.App. 431, 122 N.E. 25 (1919); Dickey v. Herbin, 250 N.C. 321, 108 S.E.2d 632 (1959); In re Estate of Ristman, 208 Or. Page 171 234, 300 P.2d 408 (1956). There is, however, a minority view. See, e.g., In re......
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