Labar v. Nichols , 2 Mich. N.P. 108 ( 1871 )

Campbell, Ch. J. .

The circuit court of Kalamazoo county dismissed an appeal from the allowance of an administration account, on the ground that the appellant was not a “ person aggrieved” by the order appealed from.

The appellant was- a son of the decedent, who died testate, and who had bequeathed him ten dollars out of a considerable estate, all of which was willed to specific and residuary legatees and devisees. This will was probated and established in 1859. The account in question was settled in 1869, and the order of settlement directed the legacy to appellant to be paid, and a large surplus was shown and ordered to be distributed.

The appellant had no interest in the estate beyond his legacy of ten dollars, and it in no way concerned him what should be done with it. The only possible interest he could have would be in the event of some contingent and unaccrued claim, which might not be exhausted by the residue of the assets, and to which he might be subject to contribute out of his legacy.

The statute declares that, in order to authorize a person to appeal, he must be “aggrieved.” The general rule, in regard to the interest which will authorize suits, is that it must be a present and existing cause of action. It could hardly be insisted that, if the executor had paid this legacy, the appellant could, without some probable cause of risk to his own interests, cite him to account, or prosecute him on his bond for not accounting. A mere possibility of some unknown and future contingency would give no right of action. It is not necessary in this case to consider how far probate proceedings may be allowed to go beyond the rule generally applicable to actions. There must be some interest.

No contingent claim appears to have been presented, and ten years have elapsed since the probate of the will. The appellant’s rights are recognized and protected by the order appealed from. There is no evidence of the existence of any state of things which, could give rise to any contingent claim that could be presented hereafter, and the lapse of time is such as to raise every presumption against it. Without, therefore, deciding whether the party appealing must be directly and immediately affected in an existing right, in order to be “ aggrieved,” we think that if this is not so, there must be some showing at least to overthrow the strong presumption against such possible future grievance; and we think, therefore, the court below acted properly in dismissing the appeal, which bears all the marks of being intended for vexation and not to subserve tlie ends of justice.

The judgment must he affirmed with costs.

The other Justices concurred.