1 Wash. 341 | Wash. | 1890
The opinion of the court was delivered by
Upon the motion to dismiss the appeal in this cause, it was made to appear to this court that the action was instituted in the probate court, and was there a contest between the executor of an estate and one claiming adversely, as to whether or not certain real estate should
It is conceded thatif the probate court had no authority to institute the action, by reason of want of jurisdiction of the subject-matter, then the superior court and this court could get no jurisdiction by way of appeal therefrom. That the probate court is without jurisdiction to try the title to property as between the representatives of an estate and strangers thereto is too well established by the authorities to require argument. See Schouler, Executors and Administrators, § 236; Lynch v. Divan, Ex’r, 66 Wis. 490; Budd v. Hiler, 27 N. J. Law, 43; Snodgrass v. Andrews, 30 Miss. 472; 64 Am. Dec. 169; Theller v. Such, 57 Cal. 447.
In the case at bar, the person claiming adversely to the estate was the husband of the deceased party, and it appears that this fact was thought to affect the question. We, however, do not think so. For while it is true that the probate court has jurisdiction to determine the claims to property as between those interested in the estate, this authority only goes to the extent of determining their relative interests as derived from the estate, and not to an interest claimed adversely thereto. In the case before us the husband, though interested in the estate of his deceased wife, was, so far as the claim he was attempting to assert, an entire stranger thereto. See Budd v. Hiler, above cited. The probate court had no jurisdiction of the subject-matter of the action, from which it follows that the higher courts could get no jurisdiction on appeal.
It only remains to determine the character of the order
The appeal in this case must be dismissed, and the judgments in the superior court and in the probate court reversed; and such probate court must proceed in the administration of the estate in question in accordance with law. The appellant will recover costs of this court, and the appellee the costs in the superior court.