Opinion
13594
March 6, 1933.
Before FEATHERSTONE, J., Laurens, April, 1931. Appeal dismissed.
Action by Sam H. Byrd, as executor of the will of Sarah Irby, deceased, and as administrator with the will annexed de bonis non of the estate of Charles Irby, deceased, against Mahala Shell, Bessie Herron, and others. From a decree confirming a referee's report in defendant Herron's favor, the executor appeals.
The Circuit Judge's decree, directed to be reported, was as follows:
The above-stated action is one to construe the wills and codicils thereto of Charles Irby, deceased, and Sarah Irby, deceased, marshal their assets, and settle their estates. They were husband and wife, and had no children. Charles Irby died first, leaving a will and codicil thereto, and Sarah Irby died, leaving a will and several codicils thereto.
The action was commenced by service of summons and complaint on the defendants, all of whom were duly served. It was referred to Hon. H.S. Blackwell, as special referee, to take the testimony and report on all issues, and now comes on for hearing on exceptions to said report. On hearing same and argument of counsel it is ordered, adjudged, and decreed that the report of the said referee be, and the same is hereby, confirmed, except as modified by this decree.
It appears that Charles Irby died seized and possessed of a tract of land in Laurens County, containing 200 acres, more or less, which he devised to his wife, Sarah Irby, for her sole use and benefit so long as she lived, and at her death to be divided equally amongst her and my own heirs at law and next of kin, agreeable to the laws of distribution under the statutes of South Carolina. Under this provision of the will, Sarah Irby took a life estate in the whole of said land, and a fee-simple title to one-half thereof under the rule in Shelley's case, which was of force in this State at the time of the death of the said Charles Irby.
Sarah Irby devised her interest in said lands, the same being a one undivided one-half interest, to the defendant Bessie Herron, who takes the same in fee simple. The other undivided one-half interest given to the heirs at law of Charles Irby belongs to them in fee simple, and they are his brothers, and his surviving nephews and nieces, the children of his deceased brothers and sisters, mentioned in the complaint. They desire and ask that the land be partitioned in kind, the share going to them to be allotted to them as tenants in common, in accordance with their respective interest as heirs at law of Charles Irby, and this should be done provided they pay into the Court their proportion of the costs and disbursements of the action as found by the referee. The lands should be divided into two parcels as near equal in value as practical, one of said parcels to be allotted to the heirs at law of Charles Irby, as tenants in common, the other to Bessie Herron. The heirs at law of Charles Irby should pay one-half of the costs of partitioning said land, and Bessie Herron should pay the other half of such costs.
It is therefore further ordered, adjudged, and decreed that a writ in partition in accordance with law and the practice of this Court be issued, directed to five commissioners, as provided by law, two to be named by the heirs at law of Charles Irby, or their attorney, two by Bessie Herron, or her attorney, and one by the Clerk of this Court, directing them, after first being duly sworn, to go upon the real estate of the said Charles Irby, to examine same, to call to their aid a surveyor, should they find it necessary, and to make partition of same in the following proportions, between the aforesaid parties, to wit: One-half thereof in value to the heirs at law of Charles Irby, deceased, and one-half thereof in value to the said Bessie Herron. In the event partition cannot be made with perfect equality between said parties, according to their said interest therein unless compensation be made by one of them to the other for equality, then that they ascertain and report the proper compensation which ought to be made for equality of partition and by which of the said parties the same should be paid, and to which the same ought to be allowed. In the event it cannot be fairly divided in either manner, without manifest disadvantage and injury to one or the other of said parties, then they should certify and whether in their opinion it would be most to the advantage of the parties that same should be sold at public auction, and they should certify at the same time the appraised value of said property, and return the writ to the Clerk of this Court under their hands and seals, together with the manner in which they have executed the same.
It is further ordered, adjudged, and decreed that the plaintiff pay to the parties, or their attorneys, the amounts found due them by the referee, together with his proportionate share of the costs, and that he thereupon be discharged from his trust, he making a report to the Clerk of this Court for his acts and doings under this decree for confirmation by the Court.
Messrs. Richey Richey, for appellant, cite: As to the rule in Shelley's case: 42 S.C. 342; 2 Rich. Eq., 49.
Mr. O.L. Long, for respondent, Bessie Herron, cites: Right of executor to appeal: 13 L.R.A., 745; 83 Cal., 420; 65 Cal., 287; 49 Cal., 550; 78 N.Y., 222; 58 Md., 86. Administrator has no standing to appeal from a decree of distribution: 28 A.L.R., 420; 11 R.C.L., 187; 2 R.C.L., 52. Only party aggrieved may appeal: Sec. 773, Code 1932; 104 S.C. 435; 89 S.E., 474; 42 S.C. 330; 20 S.E., 136. As to super-added words preventing application of rule in Shelley's case: 30 S.E., 400; 29 L.R.A. (N.S.), 942; 3 Hill, 193; 101 S.C. 196; 85 S.E., 369; 239 Ill., 462.
Mr. R.E. Babb, for other respondents.
March 6, 1933. The opinion of the Court was delivered by
Action was brought in the Court of Common Pleas for Laurens County for the purpose of having construed the wills, and codicils thereto, of Charles Irby and Sarah Irby, and for judgment for settlement of their estates. It was referred to H.S. Blackwell, Esq., to hear and determine the issues of law and of fact. Upon the coming in of his report, the matter was heard by Hon. C.C. Featherstone, Circuit Judge, upon exceptions thereto. In due time Judge Featherstone filed his decree confirming the report of the referee. The appeal from that decree is by the executor alone; none of the devisees under the respective wills, nor any other party in interest, has appealed.
The executor appeals for the reason, as stated by his counsel, that, if the Circuit decree had ordered certain land to be sold, instead of decreeing it divided in kind, appellant would have collected commissions on the land so sold.
Along with the hearing on the merits of the appeal, this Court heard a motion, of which due notice had been given, to dismiss the appeal on the ground that appellant had no interest in the suit which entitled him to appeal.
Section 773, Vol. 1, Code 1932, declares that any party aggrieved may appeal. The appellant here is not aggrieved by the judgment of the Circuit Court, which deals with and declares the rights and interests of the parties to the action. He is only a party in a representative capacity. If the land were sold which he contends should have been sold, it would not have benefited him. The sale would have been made by the master, and the proceeds distributed by him, and the commissions on the sale would have gone to him.
There seems to be no direct authority in this jurisdiction on this exact point, but respondent's counsel has in his excellent brief cited a number of apt authorities from the decisions of Courts of other jurisdictions. We quote one or two of them:
"The right to appeal as a party `aggrieved' does not extend to executors who have obtained a judgment construing a will as to which of two parties is entitled to a certain bequest where the alleged claimants acquiesce in the decision." Warren Bryant et al., Executors, v. Thompson, 128 N.Y., 426, 28 N.E., 522, 13 L.R.A., 745.
"The Executor cannot appeal as such from a decree of settlement and distribution although he is a legatee." In re. Marrey's Estate, 65 Cal., 287, 3 P., 896.
The appeal must be dismissed.
The Court is satisfied with the decree of the Circuit Judge. Let it be reported.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES STABLER and CARTER concur.