King v. Buttolph

• Decision Date: 28 March 1929
• Docket Number: No. 5545.,5545.
• Citation: 30 F.2d 769
• Parties: KING v. BUTTOLPH et al.
• Court: U.S. Court of Appeals — Ninth Circuit

30 F.2d 769 (1929)

KING v. BUTTOLPH et al.

No. 5545.

Circuit Court of Appeals, Ninth Circuit.

February 18, 1929.

Rehearing Denied March 28, 1929.

Morrison, Hohfeld, Foerster, Shuman & Clark, of San Francisco, Cal., for appellant.

Ulrich & Hite, of Honolulu, Hawaii, and Grove J. Fink, of San Francisco, Cal., for appellees.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

GILBERT, Circuit Judge.

The parties to this appeal united in submitting to the court below for construction the question of the intention of a testatrix, as expressed in certain provisions of her last will and testament. In that instrument she appointed King and Buttolph her executors, and made Buttolph and the Bishop Trust Company devisees of the remainder of her estate in trust for certain designated purposes. The court below heard and disposed of the controversy and placed a construction upon those provisions of the will which were presented for interpretation. The executor Buttolph and the Bishop Trust Company are content with the decision thus rendered, and said executor refused to join in the appeal.

The other executor, in appealing from the decision of the court below, assigns error to the construction given by that court to the following paragraph of the will: "I give and bequeath all other of my personal effects including books, pictures, household linen, china, glass and wearing apparel not herein otherwise mentioned or bequeathed specifically to my executors requesting them to distribute the same at their discretion to my friends."

It is argued that the court erred in adjudging that all the excess articles of jewelry owned by the testatrix in addition to those articles of jewelry which she described and specifically bequeathed to named devisees by her will are part of the residuary estate of the testatrix and subject to the residuary clause of her will, and it is contended that the intention of the testatrix was to leave all of said articles of jewelry not specifically bequeathed by her will to the executors to be by them distributed at their discretion to such of her friends as they might appoint and select as recipients of the same.

The question is presented whether or not the appellant has a right of appeal. He stands alone in contesting the validity of the decision of the court below. He represents the interest of no person affected by the decision, or who might be the recipient of any of the articles of jewelry which he contends were left to the executors to distribute in their discretion, and there is no means of identifying such persons. It is of no moment to him in his official capacity whether the jewelry is given to unknown donees, or is given to the trustees for the benefit of the trust estate. We think that he has no standing as an appellant in the case, and that the appeal should be dismissed. It is fundamental that an appellant must either have or represent an interest in the subject-matter of the appeal, and it is generally held that, where it does not appear that the administrator has an interest in a controversy and he is the only party asking a review of the judgment, the appeal should be dismissed. Virden v. Hubbard, 37 Colo. 37, 86 P. 113.

Said the court in Re Welch's Estate, 106 Cal. 427, 39 P. 805: "It is a sound proposition that administrators, general or special, like receivers and other trustees or custodians of funds for designated purposes, are not ordinarily affected by orders in reference to their disposition, and, therefore, will not be...