Ewing v. Mallison

• Decision Date: 11 October 1902
• Docket Number: 12,687
• Citation: 70 P. 369,65 Kan. 484
• Parties: W. F. EWING v. DANIEL MALLISON, as Administrator, etc., et al
• Court: Kansas Supreme Court

70 P. 369

65 Kan. 484

W. F. EWING v. DANIEL MALLISON, as Administrator, etc., et al

No. 12,687

Supreme Court of Kansas

October 11, 1902

Decided July, 1902.

Error from Lyon district court; W. A. RANDOLPH, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PROBATE COURT -- Appointment of Administrator -- Collateral Attack. The action of a probate court in appointing an administrator and issuing letters of administration is judicial in its nature, and is not open to collateral attack, unless the court acted without jurisdiction.

2. PROBATE COURT -- Deceased must have been an Inhabitant or Resident. The probate court of a county has no jurisdiction over the estate of a deceased resident of this state to appoint an executor or administrator, or to prove a will, unless the deceased was at the time of his death an inhabitant or resident of the county of such probate court.

3. PROBATE COURT -- True Place of Residence of Deceased may be Shown in a Collateral Proceeding. The place of residence of the deceased at the time of his death is an essential, collateral, jurisdictional question of fact. This fact is not conclusively established by the appointment of an administrator, the issuance of letters of administration, the probating of a will, or by any other decision in reference to the estate of the deceased which a probate court may make and, in a proper collateral action or proceeding, the true place of residence of the deceased at the time of his death may be shown for the purpose of disproving jurisdiction in the court assuming to administer the estate.

4. JURISDICTION -- Courts of Coequal Authority. Between courts of coequal authority, that one which first obtains jurisdiction will be permitted to pursue it to the end, to the exclusion of all others, and it will not permit its jurisdiction to be impaired or subverted by a resort to some other tribunal.

5. JURISDICTION -- When a Party is not Estopped. A party is not estopped or concluded by the decision of a court proceeding without jurisdiction of the subject-matter, but may show the want of jurisdiction in the court in order to show that he is not concluded by its decision.

Lambert & Huggins, for plaintiff in error.

C. B. Graves, Daniel Mallison, and Hutchings & Keplinger, for defendants in error.

POLLOCK, J. All the Justices concurring. CUNNINGHAM, J., not sitting, having been of counsel.

OPINION

POLLOCK, J.:

John A. Whitcraft died at the residence of his nephew, Horace H. Standish, in Wyandotte county, on the 6th day of January, 1898. At the date of his death he was the owner of two certificates of deposit of $ 1000 each, issued by the First National Bank of Emporia; also, real estate and other personal property in Lyon county. For many years prior to his death Whitcraft had been a resident of Lyon county. On the 19th day of January, 1898, Horace H. Standish filed his petition in the probate court of Lyon county, praying his appointment as administrator of the estate of Whitcraft. On the same day John W. Logan and others filed their petition praying for the appointment of W. F. Ewing as administrator of such estate. These petitions each alleged the death of Whitcraft, late of Lyon county, Kansas, deceased; that he died leaving no last will and testament, so far as the petitioners knew or believed, and that he died seized of money in bank, mortgages and real estate in Lyon county, Kansas. On the 21st day of January there was a hearing on these applications and that of Standish for his appointment was denied, and that of Logan and others for the appointment of Ewing was granted. Ewing was appointed, letters of administration were issued to him, and he qualified and gave bond as such administrator.

Thereafter, on the 13th day of February, 1898, Standish made application to the probate court of Wyandotte county for probate of an alleged oral will of Whitcraft, and for the appointment of defendant in error Mallison, as administrator, with will annexed. To this proceeding, Ewing, as administrator, appeared in the probate court of Wyandotte county, filed his plea in abatement, alleging his prior appointment and qualification as administrator by the probate court of Lyon county, and want of jurisdiction in the probate court of Wyandotte county to make the appointment prayed. Upon a hearing, this plea was overruled, and it was found that Whitcraft was at the date of his death a resident of Wyandotte county. Thereafter an order was made admitting the nuncupative will to probate, and appointing defendant in error Mallison administrator with will annexed. No appeal was taken from the proceedings of either probate court.

This action was brought by Mallison, as administrator with will annexed, to recover from the receiver of the First National Bank of Emporia, then insolvent and in the hands of Morton Albaugh, as receiver, by order of the comptroller of the currency, on the certificates of deposit. Ewing, as administrator, was made party defendant, and answered, setting up his appointment by the probate court of Lyon county, his qualification under such appointment, and his right to the funds of the estate. Plaintiff replied, pleading an adjudication by the probate court of Wyandotte county and an estoppel of Ewing to claim under this appointment. There was judgment for plaintiff. Defendant Ewing brings error.

The merits of this controversy depend on the actions of the probate courts of Lyon and Wyandotte counties, and the effect of the appearance of the administrator appointed by the probate court of Lyon county in the probate court of Wyandotte county, and there contesting the jurisdiction of that court over the estate he was appointed to represent. It is admitted that the jurisdiction of the probate court of Lyon county was first invoked, and that court first assumed jurisdiction over the estate; that plaintiff in error was appointed administrator of the estate and letters of administration were issued to him; and that he qualified, as provided by law, before the jurisdiction of the probate court of Wyandotte county was invoked. That Standish, first to invoke the jurisdiction of the Lyon county court, after defeat in that court, was the first to invoke the jurisdiction of the probate court of Wyandotte county, is admitted.

This controversy arises over the exercise of jurisdiction by the separate tribunals. The petition of Standish, verified and filed in the probate court of Lyon county, seeking his own appointment as representative of the estate, among other things, alleged the following:

"The petition of the undersigned, Horace H. Standish, respectfully represents that John H. Whitcraft, late of the county of Lyon, aforesaid, departed this life at the residence of this petitioner, at Kansas City, Kan., in Wyandotte county, on or about the 16th day of January, 1898, leaving no last will or testament, as far as your petitioner knows or believes."

In legal contemplation, this allegation means that the deceased was last a resident of Lyon county (Beckett v. Selover, 7 Cal. 215, 68 Am. Dec. 237), and left no will, and was made for the purpose of inducing the probate court of Lyon county to assume jurisdiction over the estate of the deceased. Although such allegation would not confer jurisdiction on the probate court of Lyon county to administer the estate of the deceased if the requisite jurisdictional facts did not exist, for jurisdiction cannot be conferred by consent of parties, yet, it may well be doubted whether, after the probate court of Lyon county acted judicially on the admission and declaration contained in this allegation of residence of the deceased, an admission of a jurisdictional fact solemnly made on the oath of the petitioner, Standish should not be debarred from denying the truth of this allegation for the purpose of either invoking the jurisdiction of the Wyandotte court or denying the authority of plaintiff in error as representative of the estate. A party should not be permitted thus to belie himself. In support of this position, see Railway Company v. Ramsey, 22 Wall. 322, 22 L.Ed. 823; Turner v. Billagram, 2 Cal. 520; Miltimore v. Miltimore, 40 Pa. 151; Potter v. Adams' Executors, 24 Mo. 159; Lovelady et al. v. Davis, Ex'r, 33 Miss. 577; Ela v. McConihe, 35 N.H. 279; Hines and Bryan v. Mullins, 25 Ga. 696; Samuel Brown v. Ezekiel S. Haines and others, 12 Ohio 1; Mandeville v. Mandeville et al., 35 Ga. 243; Harbin, Adm'r, v. Bell et al., 54 Ala. 389. However, we do not rest our decision upon this ground.

It is a principle of universal application, essential to the orderly administration of justice, in order to avoid conflict between tribunals of coequal authority, that the court first acquiring jurisdiction shall be allowed to pursue it to the end, to the exclusion of others; and that it will not permit its jurisdiction to be impaired or subverted by a resort to some other tribunal. This general principle was announced by this court in the criminal case of The State v Chinault, 55 Kan. 326, 40 P. 662, and writers on criminal law and criminal cases arising in other jurisdictions are there cited in its support. The doctrine is not confined to criminal cases. It is alike applicable in civil practice. (Sharon v. Terry (C. C.), 36 F. 337; Taylor v. Taintor, 16 Wall. 366, 21 L.Ed. 287; Gaylord v. Ft. W. M. & C. R. R. Co., 6 Biss. 286, Fed. Cas. No. 5284; Union Mut. L. Ins. Co. v. Chicago University (C. C.), 6 F. 443, 10 Biss. 191; Mason v. Piggott, 11 Ill. 85; Bank of B. Falls v. R. & B. R. Co. et al., 28 Vt. 470; Stearns & al. v. Stearns & al., 16 Mass. 167; Home Insurance Co. v. Howell, 24 N.J.Eq. 238; Hines & Hobbs v. Rawson, 40 Ga. 356, 2 Am. Rep. 581; Wilkinson v. Wait, 44 Vt. 508, 8 Am. Rep. 391; Merrill v. Lake and...