Opinion
No. 1774
November 21, 1932
APPEAL AND ERROR — MOTION TO DISMISS.
1. Ordinarily, Supreme Court should not assume to decide merits of case on motion to dismiss.
ERROR to District Court, Fremont County; E.H. FOURT, Judge.
There was a brief by Donald Spiker, of Riverton, Wyoming, A.H. Maxwell, of Lander, Wyoming, and Bryant S. Cromer, of Casper, Wyoming, and oral argument by Mr. Cromer and by Mr. Maxwell in support of the motion.
An executor or administrator is without authority in his official capacity outside the state or county where he is appointed. 1 Woerner Am. Law Adm. (3rd Ed.) 558, and cases cited. A former executor or administrator has no standing except by compliance with statutes. In re Kingsley, 160 Fed. 275, and cases cited. It is a fundamental rule of the common law that the authority of an executor or an administrator will not extend beyond the limits of the state in which he was appointed. In re Gaynor, L.R. 1 P. D. 723; In re Cowham's Estate, 220 Mich. 560; 24 C.J. 1109; LeFebure v. Baker, (Mont.) 220 P. 1111. The right of a foreign executor or administrator to maintain an action may be reached by demurrer, Louisville Nashville R.R. Co. v. Brantley, (Ky.) 28 S.W. 477; Lusk's Admrs. v. Kimball, (Va.) 87 Fed. 545, without taking out letters of administration in the local jurisdiction. Johnson v. Powers, 139 U.S. 156; Lewis v. Adams, (Cal.) 8 P. 619; Stacy v. Thrasher, 47 U.S. 48; Colburn v. Latham, (S.D.) 143 N.W. 278; Moore v. Petty, 135 Fed. 608; Church Prob. Law and Practice, p. 1439. A proceeding in error is in the nature of a new suit. Barrett v. Whitmore, (Wyo.) 207 P. 71; Phillips Code Pleading, 557; 3 C.J. 304; 7 Enc. Pl. Pr., p. 823; State v. Preston, (Nev.) 97 P. 388. The jurisdiction of probate courts is measured by statutory grant. 2 Woerner 3d 1267; McCall v. Lee, 120 Ill. 261; In re Manser's Estate, (Ore.) 118 P. 1024; Spelling App. Pr. 646. Error proceedings will be dismissed where a transcript discloses lack of interest. Cosson v. Packer, (Kas.) 56 P. 136. The court is without authority to require the administrator to inventory property not belonging to the estate. 2 Woerner 3d 1107. The filing of claims against estates is governed by the statutes. Sec. 88-3601, W.R.S. 1931. If the will makes plaintiff a trustee, he may sue without appointment as executor. Winning v. Silver Hill Oil Co., (W.Va.) 108 S.E. 595.
Opposing the motion there was a brief by G.J. Christie, F.A. Michels and Lucius F. Chase, of Lander, Wyoming, and oral argument by Messrs. Christie, Michels and Chase.
The incapacity of the foreign executor is waived by failure to object. Farmers Trust v. Bradshaw, 242 N.Y.S. 598; Sparks v. Assn., (Ia.) 69 N.W. 678; Berlin v. Steel Co., (Ala.) 26 So. 933; Palms' Admrs. v. Howard, (Ky.) 102 S.W. 267; N.W. Mutual Life v. Lowery's Admrs., (Ky.) 20 S.W. 607. Palms' Admrs. v. Howard is a more recent case than Louisville Nashville R.R. Co. v. Brantley, cited by defendant in error. The cases cited by defendant in error may be readily distinguished on the facts from the controversy here. The domiciliary executor is a party interested and a party entitled to appear. Lewis v. Adams, 8 P. 619; In re Davis, 92 N.Y.S. 968. It has been contended that the heirs and legatees are not persons interested in a case involving distribution by an ancillary executor to the domiciliary executor. In re Pratt's Estate, 257 N YS. 226. Petitioner in this cause is a trustee under the will and thereby entitled to appear. See brief of plaintiff in error, pp. 40 and 41. It is alleged that petitioner is a beneficiary under the will and failure of defendant to deny by answer admits that petitioner is a beneficiary. Sec. 89-1028, R.S. 1931. No evidence as to petitioner's beneficial interest could arise. Winning v. Silver Hill Oil Co., 108 S.E. 595. The filing of a petition in error does not raise issues not raised at the trial, irrespective of the doctrine that error proceedings are a new and independent action. Nations v. Johnson, 24 How. 195; 3 C.J. 304; Sec. 88-909, R.S. 1931. Provisions under the civil code of procedure apply in probate. Sec. 88-911, R.S. 1931. The order here is an appealable order. Sec. 89-4803, R.S. 1931; Weidenhoft v. Primm, 16 Wyo. 340. In Wyoming a "final order" includes any order affecting a substantial right which in effect determines the action and prevents a judgment. Sec. 89-4801, R.S. 1931. The executors should be required to inventory all the claims against themselves; a motion to dismiss is not proper to raise the issues herein. The merits of an appeal or questions involving the merits will not be considered on motion to dismiss. 4 C.J. 602, Sec. 2426.
The case has been heard on motion to dismiss filed by defendants in error. The principal ground of the motion raises questions that evidently were decided against plaintiff in error by the order of the District Court which we are asked to review. The decision of those questions here requires a consideration of the merits of the proceeding in error.
We have heretofore held that we should not assume ordinarily to decide the merits of a case on a motion to dismiss. Enos v. Keating, 36 Wyo. 318, 255 P. 1. The motion will be denied with the understanding that points thereby raised may receive further consideration when the case is heard on the merits.
Motion denied.