Ferrell v. Basnight , 257 N.C. 643 ( 1962 )

127 S.E.2d 219 (1962) 257 N.C. 643

Lewis E. FERRELL, Executor of the Last Will and Testament of Della Basnight Bell
v.
Oscoe BASNIGHT, Melvin Basnight, St. Claire Basnight, Milroe Etheridge, Myrtle B. Peck, Enid B. Ford, Ellen Alexander, and Flossie Basnight.

No. 94.

Supreme Court of North Carolina.

September 19, 1962.

Barden, Stith & McCotter, by L. A. Stith, New Bern, for plaintiff appellant.

R. E. Sumrell, New Bern, for defendants appellees.

RODMAN, Justice.

Plaintiff, appellant, does not contend his rights are in any wise prejudiced by the judgment. Admittedly the court has answered the questions which plaintiff wanted answered and which are determinative of the rights of the parties. Mrs. Alexander did not deny the allegation in the complaint that Mrs. Bell, when she referred to her half sister, meant Mrs. Etheridge and not Mrs. Alexander. In fact Mrs. Alexander not only did not deny the allegation but executed the written instrument acknowledging that fact. She has not appealed from the judgment determinative of her rights.

The remaining defendants have not appealed from the judgment declaring Winslow Basnight's children entitled to the $1000 given by the will to their father, nor have they appealed from that part of the judgment holding that they are jointly entitled to one-fifth of the residuary estate. In fact all the defendants who answered and who have entered an appearance in this Court conclude their brief with this language: "We contend that for the reasons above stated, Myrtle B. Peck and Enid B. Ford are entitled to the One Thousand Dollar bequest made to their father, Winslow Basnight, under Item Three of the Will involved in this case; that they are entitled to One-Fifth (1/5) of the residuary estate; and that Milroe Etheridge is the half-sister referred to in Item Thirty-Five of the will and is therefore entitled to One-Fifth (1/5) of the residuary estate." It thus appears that the parties who might be adversely affected by the judgment approve the result but suggest that the court gave the wrong reason for the conclusion reached.

Because plaintiff is not an aggrieved party, his appeal must be dismissed unless we are to depart from an unbroken line of decisions by this Court. Cline v. Olson, 257 N.C. 110, 125 S.E.2d 320; Dickey v. Herbin, 250 N.C. 321, 108 S.E.2d 632; Gregg v. Williamson, 246 N.C. 356 98 S.E.2d 481; Langley v. Gore, 242 N.C. 302, 87 S.E.2d 519; State ex rel. Gold v. Equity Gen. Insurance Co., 255 N.C. 145, 120 S.E.2d 452; Waldron Buick Co. v. General Motors Corp., 251 N.C. 201, 110 S.E.2d 870; In re Estate of Cogdill, 246 N.C. 602, 99 S.E.2d 785.

Our holdings are in accord with decisions elsewhere. Holland v. King, 214 Ga. 723, 107 S.E.2d 805; Bryant v. Thompson, 128 N.Y. 426, 28 N.E. 522, 13 L.R.A. 745, with annotations; Annotation, 117 A.L.R. 99, on the question "Right of executor or administrator to appeal from order of distribution." See particularly the list of cases cited pp. 100-101. "An executor or administrator, as such, is not, however, aggrieved or prejudiced by a decree or judgment as to the rights of the beneficiaries, and therefore, cannot appeal from a decree affecting their interests. In accordance with this rule, it is held that an administrator is not entitled to appeal from a decree of distribution." 2 Am.Jur. 960-961; 4 C.J.S. Appeal & Error § 193, pp. 585-586.

Appeal dismissed