143 Wis. 497 | Wis. | 1910
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
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.
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.