Smith v. Peckham

39 Wis. 414

• Court: Wisconsin Supreme Court
• Decided: January 15, 1876
• Status: Published

Opinion

Ryast, O. J.

Whatever difficulty there may be in the question elsewhere (Story’s Confl., §§ 507-529), there appears to be no doubt here that the disability of a foreign executor or administrator to sue in the courts of this state, is mere disability and not want of title.

Under our statute (Tay. Stats., ch. 147, § 25), a foreign executor or administrator takes here no new letters, authority or title, but is required only to record the letters, authority and title from the foreign court. Like the record of a conveyance, this is matter of evidence of title, not of title; the title still resting on the grant of the foreign court, though it can be asserted in our courts only upon the record of it. The filing of the foreign letters here is purely ministerial, requiring no action of the court here and giving it no jurisdiction. Before the record, the general disability of a foreign executor or administrator to sue outside of the state granting his letters continues here; witb tlie record, tbe disability ceases upon tbat proof of title under tbe foreign jurisdiction.

Even before tbe record, tbe disability can be taken advantage of only by way of abatement. So far as tbe case can bear any relation to tbe law of this state, there is no doubt, on principle or authority, tbat tbe dissenting opinion in Noonan v. Bradley, 9 Wall., 394, states tbe correct rule of pleading. And being waived as matter of abatement, it cannot be raised by way of bar. Moir v. Dodson, 14 Wis., 279; Johnson v. Wilson, 1 Pin., 65. See Story’s Confl., § 465.

And a mere disability to sue, not going to tbe right of action, may be cured here pendente lite. Sabine v. Fisher, 37 Wis., 376. Indeed, if tbe disability bad not been removed in this 'case, and it bad gone to judgment on tbe merits for tbe respondents, it would be a question whether, under sec. 40, ch. 125, R. S., we should be at liberty to reverse tbe judgment for an erroneous ruling of this point by tbe court below against tbe appellant on tbe demurrer. Hafern v. Davis, 10 Wis., 501; Wheeler v. Smith, 18 id., 651; Bonnell v. Gray, 36 id., 574.

Tbe proceeding in tbe probate court was very informal, and tbe paper filed by tbe appellant by way of plea does not raise tbe question of the respondent’s disability. Tbe question was first raised by tbe demurrer to tbe formal complaint filed under tbe order of tbe circuit court. We are inclined to think tbat it was then in time (Tarbox v. Supervisors, 34 Wis., 558), if well taken; but tbe difficulty was removed by tbe intermediate filing of tbe letters testamentary of tbe respondents.

So far we have assumed tbat tbe respondents’ letters issued from tbe proper court having jurisdiction at tbe domicile of their testatrix. But tbe residence of tbe testatrix at tbe time of her death is not averred in tbe complaint. This is obviously a formal, but appears to us to be a fatal, objection to tbe complaint. Non constat tbat tbe testatrix was not domi-cilecl in this state wben sbe died-, and tbat tbe probate jurisdiction of ber estate was not bere. Of conrse tbe proper jurisdiction for tbe probate of ber will, in chief, was tbat of ber domicile at death. Probate of her will elsewhere would be ancillary. Tbe statute is probably intended to relate only to letters testamentary and letters of administration issued in tbe jurisdiction of tbe domicile at death. It obviously has no application to cases where tbe decedent was domiciled bere at tbe time of death, and jurisdiction to administer tbe estate was in one of our own courts.

On tbat ground only we sustain tbe demurrer. But the court below should allow tbe respondents to amend their complaint in this particular.

By the Gowrt. — Tbe order of tbe court below is reversed, and tbe cause remanded for further proceedings in accordance with this opinion.