Wilson v. Board of Regents of the University of Colorado

46 Colo. 100 | Colo. | 1909

Mr. Justice Bailey

delivered the opinion of the court:

This appeal is by the executor Thomas V. Wilson from an order of the court directing a partial distribution of the residuum of the estate of Andrew J. Macky, deceased. Upon appellee’s motion to dismiss the same we have examined the record with the utmost care, and are unable to ascertain therefrom that the appellant has any appealable interest therein whatsoever. Indeed there is. no real controversy or issue presented by this appeal for determination by the court. Appeals are not allowed for the mere purpose of delay, or to present purely abstract legal questions, however important or interesting, but to correct errors injuriously affecting the rights of some party to the litigation. Only parties aggrieved may appeal. The word aggrieved refers to. a substantial grievance, the denial to the party of some claim of right, either of property or of person, or the imposition upon him of some burden or obligation. It is not apparent that appellant is thus'affected by the order complained of. He is not concerned in the slightest degree, in any legal sense, with the question of the proposed partial distribution of the residuum of said estate. There is no dispute anywhere as to whom it rightfully belongs, and lawfully must go. He has no personal interest in it; he acts purely in a representative and official capacity. It is not for him, on his own motion, representing no one in interest and no one aggrieved by such action, to question, dispute and deny the order of the court in this behalf. Nevertheless he brings this matter here by appeal, in behalf of no one but himself, speaking for no one but himself, and for no other interest, except such as seem purely personal.

It has been necessary to examine the facts of the case, sufficiently at least, to determine appellant’s right of appeal, which is the vital question at issue on this motion. No one having a direct or other interest in and to, or claim upon, the estate, in whole or in part, objects to or' complains of the order of partial distribution. The executor alone does this, the result of which is simply to keep in his hands this large property, upon which, and upon no part of which, has he any personal claim whatever.'

True it is that a possible balance of fees may yet be allowed him as executor, with a possible further allowance for an attorney, to cover which, upon any possible contingency, clearly an abundant amount under the court’s order is retained in his hands. Moreover a bond of $50,000.00 is required to be given by the regents of the state university to the executor, as such, to protect him against any and every possible future adverse happening.

If the contention of the appellant is correct, and to be upheld, the power is placed in the hands of such a representative official to indefinitely tie up and postpone the settlement and distribution of any estate, where no dispute of substance whatever exists, and upon flimsy and trifling pretexts, in the interests only of one seeking, in his official capacity, to retain possession of the property involved. The law does not contemplate or approve snch action, and courts should neither allow nor sanction it when properly called to their attention.

It is unnecessary to decide whether the order in question is of an appealable character, because it is manifest that the executor has no such interest therein ás entitles him to review it, and his attempt so to do must be dismissed in any event. The order of the court below is a full and complete protection to the executor for whatever he may do, by way of disposition of the property, within its terms. This being true, what possible interest has he in the further prosecution of the action? Clearly it is his duty, as it should be his pleasure, to promptly acquiesce in such 'order and cheerfully comply with its terms.

The appeal should be dismissed, and it is so ordered. Dismissed.

Chiee Justice Steele and Mr. Justice White concur.