Barlass v. Barlass, 143 Wis. 497

Barlass v. Barlass

143 Wis. 497 | Wis. | 1910

Vietje, J.

Sec. 2443, Stats. (1898), provides that:

“The jurisdiction of the county court shall extend to the probate of wills and granting letters testamentary and of administration on the estates of all persons deceased who were at the time of their decease inhabitants of or residents in the same county and of all who shall die without the state having any estate within such county to be administered. . .

And sec. 3806, Stats. (1898), says:

“When. any person shall die intestate, being an inhabitant of this state, letters of administration of his estate shall be granted by the county court of the county of which he was an inhabitant at the time of his death. . .

These provisions confer jurisdiction upon the county court to act (1) when it is shown that an inhabitant of or resident in the same county has died; (2) when it is shown that a person has died without the state having any estate within such county to be administered. In the first case the jurisdictional facts are domicile and death; in the second, the existence of an estate within the county to be administered, and death without the state. In each case such jurisdictional facts may be controverted upon the hearing of a petition for letters testamentary or of administration, and they must be established before the court acquires jurisdiction to act. Not so, however, as to the existence of an estate in the case of the death of a resident of the county. A prima facie showing that there is an estate, or a tona fide claim that deceased left property *499to be administered, or the prima facie showing of any other statutory ground for the granting of letters of administration, is all that is necessary. Thus it was Held in Perkins v. Owen, 123 Wis. 238, 101 N. W. 415, that intestacy was not a fact that must exist in order to confer jurisdiction upon the county «ourt to administer an estate as intestate estate. In a case like the one at bar a bona fide claim that there is an estate to ■administer will support the granting of letters, and the court should not proceed to adjudge the validity of the claim. That must be left for future litigation in the proper forum and between the proper parties. Parsons v. Spaulding, 130 Mass. 83, 86; Grimes v. Talbert, 14 Md. 169, 172; In re Brooks’s Estate, 110 Mich. 8, 67 N. W. 975; Schouler, Ex’rs, § 93; 1 Woerner, Adm’n, § 204. Moreover, in this case the court found that deceased left $36. The fact that it was afterward used, and properly 'so, for funeral expenses, is immaterial. The status at the time of death governs. It has been held that the mere existence of local assets, irrespective of amount ■or value, will support a local grant of administration. Finney v. McGregory, 102 Mass. 186; Mo. Pac. R. Co. v. Bradley, 51 Neb. 596, 71 N. W. 283; Horton v. Trompeter, 53 Kan. 150, 35 Pac. 1106.

In Flood v. Pilgrim, 32 Wis. 376, Lyom, J., was strongly inclined to think that a local grant of letters, where there is no estate, is absolutely null and void; and in Filbey v. Carrier, 45 Wis. 469, he reiterated this opinion. In neither case, however, was the question involved. a Both cases turned upon the right of the administrator to the possession or use of real ■estate. While it would undoubtedly be an abuse of discretion on the part of the county court to appoint an' administrator in a case where it is conceded there is no estate or other statutory ground for the appointment, the deceased being a resident, yet it cannot be said that the act of appointment is ■beyond the jurisdiction of the court.

Counsel for contestant cites Jordan v. C. & N. W. R. Co. *500125 Wis. 581, 104 N. W. 803; Grimes v. Talbert, 14 Md. 169; Pinney v. McGregory, 102 Mass. 186; Beach's Appeal, 76 Conn. 118, 55 Atl. 596; Van Giessen v. Bridgford, 83 N. Y. 348, and Wright v. Smith, 19 Nev. 143, 7 Pac. 365, to-show that in each of those cases the question of the existence of an estate was litigated upon the hearing of the petition for the appointment of an administrator. In all hut the last two-cases the deceased was a nonresident, and of course the question of the existence of an estate within the territorial limits-of the court had to he settled to determine its jurisdiction. In Van Giessen v. Bridgford, supra, the deceased died in 1663, and when the application for administration was made in 1871 the court presumed ancient administration, especially in view of the fact that the family hihle and pair of earrings, sought to he administered upon were not satisfactorily shown ever to have belonged to the deceased. The case of Wright v. Smith, supra, was decided under a special statute in force in Nevada as to community property, and has no application to the question under consideration.

By the Court. — The judgment of the circuit court is reversed, and the cause remanded with directions to enter judgment' affirming the order of the county court.