Barksdale v. Morgan
34 App. D.C. 549
D.C. Cir.
1910
Check Treatment
Mr. Justice Van Orsdel

delivered the opinion of the Court:

At the outset we are met with a motion to dismiss the appeal on the ground that the appellant has no interest in the appeal: “First, because, as executor of the estate of Charles It. Morgan, he should resist any claims against the estate, or, at least, remain neutral;.and, second, because, as executor, he has no interest in the claim presented by Andrew A. Wilson, and certainly has no right to appeal from a decree denying the claim.” It is clearly apparent that the motion to dismiss must be sustained. Under our statute, it is a condition precedent to the right of appeal that the appellant must show that he is directly aggrieved by the order appealed from. The fee claimed does not represent money paid out by appellant as executor, but a claim of Wilson against the estate. The disallowance of the claim does not in any sense legally aggrieve the appellant. The fiduciary relation which he sustains to the testator’s estate forbids the presumption that he could, in any respect, have a pecuniary interest in the allowance of this claim. That being true, he is placed by this appeal in the attitude of prosecuting a claim against the estate which it is his duty to defend. In other words, he appears in a position adverse to the interests of the estate.

If the appellant, as executor, had paid this fee out of the funds of the estate in his hands, and the court had refused to allow .him credit therefor, we would be confronted with a very different case. • Then, he would be directly and personally in*553terested, and he could appeal from the disallowance of this portion of his account. It will not do to say that, because this arose in a proceeding in equity to which the attorney Wilson was not a party, he could not appeal from the order of the court below disallowing his claim, and it therefore became the duty of the executor to protect his interests. He could easily have intervened and become a party for the purposes of protecting his claim. The following paragraph from the report of the auditor indicates that Wilson appeared before the auditor and presented his claim, which was subsequently embraced in the auditor’s account: “The claim of Andrew A. Wilson, Esq., for allowance of a fee for services rendered in the proceedings upon caveat to the will is presented in connection with the order of reference, and testimony was taken herein of the said counsel, detailing the character and extent of said services, together with the evidence of a number of members of the bar as to the value of such services. * * * Upon the record and proof submitted in this reference both as to services and value, I have no hesitancy in reporting in the accounts herewith an allowance of counsel fees to Mr. Wilson in the sum of two thousand dollars ($2,000).” When this report was returned to court, Wilson took his chances of having his claim allowed in that condition, and if, when the court refused it, he was not in position to except and appeal, we cannot assume any responsibility for his absence in this court. Since the motion must be sustained, it becomes unnecessary to consider this cause on its merits. The appeal is dismissed, with costs, and it is so ordered. Dismissed.