Blaney's Estate, Matter of

• Decision Date: 29 February 1980
• Docket Number: No. 5203,5203
• Citation: 607 P.2d 354
• Parties: In the Matter of the ESTATE of Samuel D. BLANEY, Deceased. Walter FERRITER, Appellant (Plaintiff), v. The ESTATE of Samuel D. BLANEY, and Ralph Blaney, Administrator with Will Annexed, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 354

607 P.2d 354

In the Matter of the ESTATE of Samuel D. BLANEY, Deceased.

Walter FERRITER, Appellant (Plaintiff), v. The ESTATE of Samuel D. BLANEY, and Ralph Blaney, Administrator with Will Annexed, Appellees (Defendants).

No. 5203.

Supreme Court of Wyoming.

Feb. 29, 1980.

Michael D. Zwickl of Wass, Willoughby, Zwickl & Chapman, Casper, signed the brief and appeared in oral argument for appellant.

John P. Ilsley, Sheridan, submitted the brief for appellees.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

ROONEY, Justice.

Appellant-plaintiff appeals from an order of the district court dismissing his replevin action against appellee-defendant, the administrator of the estate of Samuel D. Blaney. We reverse and remand.

The replevin action had for its purpose the obtaining of possession of certain guns and accessories (hereinafter referred to as guns). The possession of the guns was transferred to appellant by Samuel D. Blaney on or about Father's Day in the summer of 1975. The guns were delivered as a surprise to appellant, and he considered the transfer as a gift. Samuel D. Blaney died May 2, 1978. A holographic will dated May 24, 1976 was admitted to probate. It contained the following language:

"Walt and Mary Ferriter have a bill of sale for what I have given them."

On appellee's petition the probate court issued an order to appellant to show cause why the guns should not be delivered to appellee, the administrator of the estate. After a hearing ¹, the probate court ordered the guns to be so delivered, and such was done. Then on November 15, 1978, appellant filed a creditor's claim for the guns in the estate. The notice to creditors was first published August 14, 1978. Pursuant to §§ 2-6-201 and 2-6-203, W.S.1977, creditor's claims were therefore required to be filed on or before three months after August 14, 1978, or on or before November 15, 1978. On December 11, 1978, appellant's claim was rejected: (1) as res judicata, (2) because appellant had no bill of sale for the guns, (3) because they were not listed in appellant's divorce settlement with his wife, and (4) because it was not timely filed. The In dismissing the replevin action, the district court found:

record does not reflect notification to appellant of such rejection as is required by law. Appellant instituted this replevin action on June 11, 1979.

" * * * (T)he Plaintiff did not file his Creditors Claim in the Probate Court within the statutory limitation after the * * * Notice to Creditors had been published, and further finds that civil action was not started by the Plaintiff after the Defendants rejected the Creditors Claim in Probate Proceedings * * *, within the statutory limitation, and further finds that the said probate proceeding has been closed and the assets distributed to the devisee as indicated * * *, and without any objection from the Plaintiff herein."

Appellant words the issue presented by his appeal as follows:

" * * * (W)hether the proper action for the recovery of property believed to be wrongfully taken by an Administrator of an estate is a creditor's claim filed in the estate or an action in replevin separate from the probate proceedings."

Implied therein is the question of the relative jurisdictions of the probate court and the district court. To dispose of the issue and its related question, we address three items: (1) jurisdiction of the probate court to determine the contest over title and right to the guns; (2) alleged late filings by appellant of creditor's claim and replevin action; and (3) effect of the closing of the estate on the replevin action.

JURISDICTION OF PROBATE COURT TO DETERMINE CONTEST OVER GUNS

The controlling rule is stated in 1 Bancroft's Probate Practice 2d ed., § 27, pp. 70-71 (1950):

" * * * It is thoroughly established that in probate proceedings title to property as between the estate, the heirs or devisees, and a third person ² may not be tried. Thus a superior court, sitting in probate, has no jurisdiction or authority to determine disputed titles to the property of the estate of a deceased person. The rule extends to disputes as to the ownership of personalty as well as to title to realty. * * * "

Part of the rationale for the concept of separate courts under the same judicial hat was set forth in Church v. Quiner, 31 Wyo. 222, 227, 224 P. 1073, 1074 (1924):

" * * * Where, as in Wyoming, the same court that has jurisdiction in probate has also general jurisdiction, the separation of its powers exercised in probate from those exercised in actions at law or in equity might at first seem the result of a merely technical rule of no practical importance; but when it is borne in mind that the court in probate having jurisdiction of the estate can for many purposes acquire jurisdiction of the persons interested in the estate without any actual notice to them, the substantial nature of the distinction, as well as the importance of maintaining it in practice, becomes clear. We deem it unnecessary to refer to other reasons for confining the probate jurisdiction to 'matters of probate,' as defined by law."

See In re Stringer's Estate, 80 Wyo. 426, 345 P.2d 786 (1959).

We recently quoted from Church v. Quiner, supra, in the Matter of Estate of Frederick, Wyo., 599 P.2d 550, 555 (1979), to indicate that decisions and proceedings made by, or conducted in, probate courts on matters wherein there is an absence of jurisdiction are legally void and of no effect:

" 'While in this state the district court is the court of general jurisdiction, and the same court has by the Constitution (section 10, art. 5) jurisdiction "of all matters of probate," yet, in the exercise of its probate powers, its jurisdiction is limited and special, and when its acts in probate Accordingly, the orders of the probate court for appellant to show cause and to deliver the guns to appellee were beyond its jurisdiction and were void and of no effect. A void judgment is not res judicata. Stroock v. Kirby Royalties, Inc., Wyo., 494 P.2d 197 (1972); 50 C.J.S. Judgments § 617 (1947).

are without the limits of the special jurisdiction conferred, they have no binding effect "even upon those who have invoked its authority. " In re Black's Estate, 30 Wyo. 55, 216 P. 1059, 1063. * * * ' "

To obtain proper possession of the guns, appellee, as administrator, could have brought his replevin action in the district court.

" * * * Since, by statute ³ in most of the states, and likewise under the common-law rule, the executor or administrator has complete control of the personalty and is charged with the duty of reducing it to possession for purposes of administration, no extensive citation of authority is needed to demonstrate the existence of a right in him to maintain such actions as replevin or claim and delivery. * * * " 2 Bancroft's Probate Practice 2d ed. § 484, p. 612 (1950). See Windle v. Flinn, 196 Or. 654, 251 P.2d 136 (1952).

If appellee had instituted such replevin action, appellant could have availed himself of the bonding procedure which is customary in replevin actions. Such was not possible under the orders here issued by the probate court. Further, appellant would have had the benefit of allegations in a complaint from which he could delineate specific issues through an answer containing admissions, denials and special defenses. For example, he could contend therein that a completed gift of the guns had been made to him; that any gift would be conditional until after probate of donor's will if the donor could void the gift by a simple statement in his will that the donee had a bill of sale (which the donee could not produce); or that the wording of the will, "Walt and Mary Ferriter have a bill of sale for what I have given them " (emphasis supplied), confirms (1) the fact that it was a gift, and (2) the fact that they have a bill of sale, whether or not they produce it. ⁴ These specific issues would then be formulated and presented to the trial court in a manner not possible under the orders made by the probate court in this case.

Inasmuch as the guns were taken by appellee under a void order of the probate court, an action of replevin was available for appellant to secure a determination of his right to possess them. The situation is similar to that involving other seizures of property under court direction.

"Replevin will not ordinarily lie for goods in the custody of the law, unless the process by virtue of which the property was seized is void." (Emphasis supplied.) 77 C.J.S. Replevin § 25, p. 22 (1952).

ALLEGED LATE FILINGS

Although appellant's choice of remedy was proper, it must, nonetheless, have been timely instituted. The trial court indicated that it dismissed this action because the action was not preceded by a timely claim against the estate and because it was not filed within the period authorized for such after rejection of such claim. Inasmuch as the claim was filed on November 15, 1978, which was exactly three months after August 14, 1978, the claim was timely filed.

"Even in the absence...