Deering v. Adams

Howard, J. The appellants are executors of the will of Mrs. Preble, and entrusted with the entire care and management of her estate, for the period of twenty years, for the benefit of the three children of her deceased son Edward D. Preble, according to provisions and directions contained in the will. The executrix expresses it as her “ particular will and request,” that the same persons who are her executors shall also be the guardians of these children, who were her only grandchildren; and as her “ express wish and desire,” that no difficulty should be suffered to arise on account of the special provision constituting the same persons executors and guardians. Directions are contained in the will for the management of the estate, and for the application of so much of the income and profits, by the “executors and guardians named,” as should be necessary and proper for the education and support of the children; and for the division, equally, of the whole estate among them, at the expiration of twenty years, and that it “ shall not vest in them or either of them, before the end of that period in any manner.” The respondent was appointed guardian of these children by the Judge of Probate for this county; having been nominated by the eldest, who is over fourteen years of age, as her [44] guardian. The mother of the children is wife of the respondent. It appeared that Edward D. Preble left estate, real and personal, to the value of several thousand dollars, and that the appellants had supplied means for the support and education of his children, since the death of his mother, agreeably to the provisions of her will. An exception is taken that the appellants are not “ aggrieved, by any order, sentence, decree or denial of the Judge of Probate,” appointing the guardian, within the meaning of the R. S. chap. 105, sect. 25, and that they have no right to prosecute the appeal. Fathers may, by last will, appoint guardians to their minor children, until the age of fourteen years. R. S. chap. 88, sect. 2. But grandparents have no power to appoint guardians for their grandchildren; although they can bestow their estates upon them on such terms or conditions as they please. Mrs. Preble could not appoint the appellants as testamentary guardians, nor could they, as executors of her éstate, be guardians to any minors interested in that estate. R. S. chap. 110, sect. 6. They were not, therefore, testamentary guardians of the children; and not being heirs next of kin, or in any manner interested in the estate of Edward D. Preble, they can have no pecuniary interest, either in their personal or representative characters, which is affected by the appointment of the respondent, and were not aggrieved by the decree of the Judge of Probate. In legal acceptation, a party is aggrieved by such decree, only when it operates on his property, or bears upon his interest directly. Smith v. Bradstreet, 16 Pick. 264; Wiggin v. Sweet, 6 Metc. 194; Bryant v. Allen, 6 N. H. 116. The construction of the will, and questions of expediency addressed to our discretion, at the argument, and embraced in the reasons of appeal, are not before us, and cannot, properly, be considered. The appeal must be dismissed.