Estate of Fulmer, Matter of

• Decision Date: 14 September 1988
• Docket Number: No. 86-324,86-324
• Citation: 761 P.2d 658
• Parties: In the Matter of the ESTATE OF Harry B. FULMER, Deceased. Henry A. BURGESS, Acting Trustee under the Last Will and Testament of Harry B. Fulmer, Appellant (Petitioner), v. FIRST WYOMING BANK, SHERIDAN, Successor Corporate Co-Trustee of the First National Bank of Sheridan, Wyoming, and Federal Deposit Insurance Corporation, Appellees (Respondents).
• Court: Wyoming Supreme Court

Page 658

761 P.2d 658

In the Matter of the ESTATE OF Harry B. FULMER, Deceased.

Henry A. BURGESS, Acting Trustee under the Last Will and Testament of Harry B. Fulmer, Appellant (Petitioner), v. FIRST WYOMING BANK, SHERIDAN, Successor Corporate Co-Trustee of the First National Bank of Sheridan, Wyoming, and Federal Deposit Insurance Corporation, Appellees (Respondents).

No. 86-324.

Supreme Court of Wyoming.

Sept. 14, 1988.

Henry A. Burgess and Robert James Wyatt, Burgess & Davis, Sheridan, for appellant.

David F. Palmerlee, Omohundro & Palmerlee, Buffalo, for appellee, First Wyoming Bank, Sheridan.

Tom C. Toner, Redle, Yonkee & Arney, Sheridan, for appellee, Federal Deposit Ins. Corp.

Before CARDINE, C.J., THOMAS, URBIGKIT and MACY, JJ., and BROWN, J. ^* , Retired.

THOMAS, Justice.

The dispositive question in this case is whether the probate court had jurisdiction to consider matters relating to a testamentary trust after the entry of a decree of final distribution. Henry A. Burgess, the appellant, presented for resolution the question of whether the probate court erred in appointing a successor corporate co-trustee, over the objection of the remaining co-trustee, after the corporate co-trustee, which had been appointed originally, ceased to do business. Other intriguing questions were argued by the parties including the abuse of discretion by the district court in selecting the successor co-trustee; the scope of the appeal in view of a limited notice of appeal; and jurisdiction over the Federal Deposit Insurance Corporation assuming subject matter jurisdiction of the probate court. In the exercise of appropriate judicial restraint, the court will not address any of the substantive questions raised because the court is satisfied that the probate court had no jurisdiction to act in the case. This court, for that reason, has no jurisdiction to entertain the appeal. The appeal must be dismissed.

In his Last Will and Testament, Harry B. Fulmer established a trust called "The Fulmer Library Fund" and appointed Henry A. Burgess and the First National Bank of Sheridan (First National) as co-trustees. The Fulmer will was admitted to probate in the District Court of the Fourth Judicial District in Sheridan County on June 27, 1972. On September 12, 1973, the probate court entered its Decree Approving Accounting of Administration of Estate and of Distribution, and, on October 11, 1973, the Decree of Final Discharge was entered.

Thereafter, the management of the estate went along smoothly until 1986. By June of 1986, First National was in severe financial difficulty, and, on June 11, 1986, Henry Burgess petitioned the probate court to enter an order requiring First National to provide him with correct financial statements for several years and all documents relating to the financial condition of the bank at that time to facilitate a determination as to whether "The Fulmer Library Fund" should retain its investment in the stock in First National. The financial situation of First National deteriorated further. Subsequently, on July 19, 1986, the United States District Court for the District of Wyoming entered an order approving the sale of certain assets and the transfer of certain liabilities of First National to First Wyoming Bank by the FDIC, which by then had been appointed the receiver of First National pursuant to federal law. This transfer was pursuant to a purchase and assumption agreement entered into on July 17, 1986. The pertinent paragraph of the purchase and assumption agreement provided for the transfer, with certain exceptions, of the trust business of First National, and the Fulmer trust was transferred to First Wyoming in accordance with the agreement.

In August of 1986, Henry Burgess filed another petition in the probate court requesting that the court require the delivery of the assets of The Fulmer Library Fund to him as the sole trustee. He asserted that the failure of First National had terminated its co-trustee status and that he had been informed orally by the FDIC that the Fulmer trust assets would be delivered to him. The probate court entered an order to show cause requiring First Wyoming and FDIC to appear and show cause why the assets of the Fulmer trust should not be delivered to Henry Burgess. Despite the objection of FDIC to the court's jurisdiction, a hearing was held on September 10, 1986. The court addressed the matter upon the merits and, subsequently, entered an order finding that: Harry B. Fulmer had intended that there be a corporate co-trustee; there had been no wrongful appropriation of assets by either the FDIC or First Wyoming Bank; and it had the sole discretion to appoint the successor co-trustee, keeping before it the testator's intent and the preferences of the beneficiaries of the trust as well as the preferences of the co-trustee. No appeal was taken from that order.

Instead, on October 23, 1986, Henry Burgess filed a motion requesting the court to appoint First Interstate Bank as the successor co-trustee. On the next day, another motion was filed requesting the court to deny any petition or motion by either FDIC or First Wyoming for reimbursement of fees or expenses, although no such application or petition appears in the record. The court heard those motions on October 24, 1986 and considered the views of Mr. Burgess as well as the Board of Directors of the Fulmer Library, the principal beneficiary of the trust. It also received information from representatives of First Wyoming as to its qualifications to continue to serve as co-trustee. The court, after listening to the presentations, made it clear to all that it was deciding solely the issue of who would be the successor co-trustee. On November 5, 1986, it entered an order designating First Wyoming as the successor corporate co-trustee of the Fulmer trust and denying both of the Burgess motions. This appeal then was attempted from that final order of November 4, 1986 (the order was signed on November 4 but entered on November 5).

The question of jurisdiction is continually present in any case and can be raised at any time. It is a matter which the court has a duty to raise upon its own motion. Kurpjuweit v. Northwestern Development Company, Inc., 708 P.2d 39 (Wyo.1985); Hayes v. State, 599 P.2d 569 (Wyo.1979); White v. Board of Land Commissioners, 595 P.2d 76 (Wyo.1979); Merritt v. Merritt, 586 P.2d 550 (Wyo.1978); Pritchard v. State, Division of Vocational Rehabilitation, Department of Health and Social Services, 540 P.2d 523 (Wyo.1975); Wyoming State Treasurer ex rel. Workmen's Compensation Department v. Niezwaag, 444 P.2d 327 (Wyo.1968). Our rule is that if the lower court is without jurisdiction, then this court also lacks jurisdiction. Snell v. Ruppert, 541 P.2d 1042 (Wyo.1975); Pritchard v. State, Division of Vocational Rehabilitation, Department of Health and Social Services, supra; Ginn v. Parrish, 362 P.2d 824 (Wyo.1961).

It is clear from precedent of this court that the jurisdiction of the district court sitting in probate was separate and distinct from its general jurisdiction. The cases treated the matter as one in which a district judge was invested with two robes--one labeled "probate judge" and the other labeled "district judge;" the judge could not wear both robes at the same time. Matter of Frederick's Estate, 599 P.2d 550 (Wyo.1979). When the court was exercising its probate jurisdiction, that jurisdiction was limited and special; it could consider only those matters relating to the marshaling, distribution...