Fletcher's Guardianship, In re

• Decision Date: 19 June 1953
• Docket Number: No. 33239,33239
• Citation: 157 Neb. 196,59 N.W.2d 359
• Parties: In re FLETCHER'S GUARDIANSHIP. HOWELL v. FLETCHER.
• Court: Nebraska Supreme Court

Page 359

59 N.W.2d 359

157 Neb. 196

In re FLETCHER'S GUARDIANSHIP HOWELL v. FLETCHER.

No. 33239.

Supreme Court of Nebraska.

June 19, 1953.

Syllabus by the Court

1. The basic rule of statutory construction is to ascertain and give effect to the intention of the Legislature as expressed in the statute.

2. In construing a statute the legislative intent may be gathered from the reason for its enactment.

3. The phrase 'a law substantially similar,' as used in section 38-801, R.R.S.1943, refers to the substance of the remedy thereby afforded; that is, permitting a marshalling or collecting of the ward's assets, wherever located, without the necessity of having to commence and maintain independent guardianships in each state or territory where assets of the ward may be located.

4. It is fundamental that a judgment of a sister state which does not meet the requirements of due process as required by section 1 of the Fourteenth Amendment to the Constitution of the United States has no validity in any state, even as a matter of comity.

5. The rule in such cases is that when a judgment rendered in one state is challenged in another, a want of jurisdiction over either the person or the subject matter is open to inquiry. The party attacking the validity of the judgment has the burden of establishing its invalidity.

6. The adequacy of substituted service so far as due process is concerned is dependent upon whether or not the form of substituted service is reasonably calculated to give the defendant actual notice of the proceedings and an opportunity to be heard.

Penelope H. Anderson and W. W. Wenstrand, Omaha, for appellant.

Warren C. Schrempp, Eugene D. O'Sullivan, Jr., Eugene D. O'Sullivan, Sr. and David S. Lathrop, Omaha, for appellee.

Heard before CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

WENKE, Justice.

This appeal is from the district court for Douglas County. It raises the question, when is the law of another state or territory of the United States so substantially similar to section 38-801, R.R.S.1943, as to make that section available to a resident guardian and his ward of such other state or territory?

Elizabeth Ann Howell filed a petition in the county court of Douglas County asking that she be appointed guardian of the person and property of her mother, Helen Howland Fletcher, a resident of Cook County, Illinois. Most of the property of which it is alleged she is the owner is located in Douglas County. As the basis for her appointment she attached to her petition a duly certified and authenticated transcript of the records of the probate court of Cook County, Illinois, showing her appointment and qualification as conservator of the estate of her mother. Helen Howland Fletcher appeared specially and objected to the jurisdiction of the county court of Douglas County of her person because no notice or summons of any kind had ever been served on her as required by the laws of the State of Nebraska. The county court sustained this special appearance and dismissed the petition, apparently on the basis that Illinois does not have a law substantially similar to our section 38-801, R.R.S.1943.

Elizabeth Ann Howell appealed from this ruling to the district court for Douglas County. Therein Helen Howland Fletcher again appeared specially and objected to that court's jurisdiction over her on the ground that no notice or summons of any kind had ever been served on her as required by the laws of the State of Nebraska. The district court overruled her special appearance and this appeal is from that ruling.

Primarily involved in this appeal is the question of whether or not the laws of Illinois on this subject are substantially similar to those of Nebraska, as evidenced by section 38-801, R.R.S.1943. It was stipulated that: '* * * the issue presented to the Court was solely on the question of whether the statutes are similar * * *.' This section of our statutes does not require a notice or summons to be served on a nonresident ward when the parties otherwise bring themselves within the provisions thereof but does provide it shall only be available 'to any resident of any state or territory in which a law substantially similar to this section' shall be in force.

'The basic rule of statutory construction is to ascertain and give effect to the intention of the legislature as expressed in the statute.' Megan v. Boyd County, 133 Neb. 539, 276 N.W. 160. In construing a statute the legislative intent may be gathered from the reason for its enactment. Kearney County v. Hapeman, 102 Neb. 550, 167 N.W. 792; Anstine v. State, 137 Neb. 148, 288 N.W. 525.

'Guardianship depends for its validity and legal effect on the law of the jurisdiction by which it was created, and the guardian's authority does not extend beyond the limits of the state. * * * a guardian appointed by the courts of one state has no authority over the ward's person or property in another state, except so far as allowed by the comity of that state, as expressed through its legislature or its court. Thus, except as authorized by statute or the principle of comity, a guardian appointed in a foreign country, or in another state of the Union, cannot demand the control of the ward's person, maintain a suit as guardian, sell or lease the ward's property, collect debts due to him, or demand his distributive share of an estate.' 25 Am.Jur., Guardian and Ward, § 215, p. 135.

There can be no doubt of the fact that the reason for enacting this legislation is fully stated in the above. What then is meant by the use of the language 'a law substantially similar' as used in the act?

It was said in Smith v. Mitchell, 185 Tenn. 57, 202 S.W.2d 979, 983: 'Now what is meant by statutes being 'substantially similar'? We think they are substantially similar when they effectuate the same result * * *.' In Orr v. Wright, Tex.Civ.App., 45 S.W. 629, 634, where a like situation was involved, the court held: 'It was not contemplated that the benefits of this statute should only apply to the residents of the state, territory, etc., having a statute exactly like ours. It was intended that the benefits of this statute should extend to the residents of any state, territory, district, or country in which a remedy was provided by the laws of such state, territory, district, or country for the removal of the estate of a nonresident ward of such state, etc., corresponding in its essential particulars to the provisions of our statute relating to nonresident guardians and wards.'

The procedure that a nonresident guardian of a nonresident ward must follow in Illinois and Nebraska are not alike. See, Illinois Probate Act, Laws 1939, section 262, p. 63, appearing in Smith-Hurd Illinois Ann.St., ch. 3, section 416, p. 910; Illinois Probate Act, Laws 1939, section 264, p. 64, appearing in Smith-Hurd Illinois Ann.St., ch. 3, section 418, p. 913; Illinois Probate Act, Laws 1939, section 265, p. 64, appearing in Smith-Hurd Illinois Ann.St., ch. 3, section 419, p. 914; Illinois Probate Act, Laws 1939, section 266, p. 64, appearing in Smith-Hurd Illinois Ann.St., ch. 3, section 420, p. 916; Illinois Probate Act, Laws 1939, section 268, p. 65, appearing in Smith-Hurd Illinois Ann.St., ch. 3, section 422, p. 918; Illinois Probate Act, Laws 1939, section 269, p. 65, appearing in Smith-Hurd Illinois Ann.St., ch. 3, section 423, p. 918; section 38-801, R.R.S.1943, of Nebraska. But we do not think the phrase 'substantially similar,' as found in our act, refers to procedure. We think it refers to the substance of the remedy thereby afforded; that is, permitting a marshalling or collecting of the ward's assets, wherever located, without the necessity of having to commence and maintain independent guardianships in each state or territory where assets of the ward may be located, often at considerable expense, inconvenience, and difficulty. In this respect the laws of Illinois seem to be more liberal than our own. We find the laws of Illinois enacted for this purpose to be 'substantially similar' to our own; that is, having a general likeness in purpose.

Appellant further contends the service had in the proceedings in Illinois did not constitute due process under either the Constitution of the State of Nebraska or the Constitution of the United States. See, Art. I, section 3, Constitution of the State of Nebraska; Fourteenth Amendment, section 1, Constitution of the United States.

Article IV, section 1, of the Constitution of the United States provides: 'Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.'

However, as stated in Repp v. Repp, 156 Neb. 45, 54 N.W.2d 238, 243: 'It is fundamental, we think, that a judgment of a sister state which does not meet the fundamental requirements of due process as required by section 1 of the Fourteenth Amendment to the Constitution of the United States has no validity in any state, even as a matter of comity.'

'The rule in such cases is that when a judgment rendered in one state is challenged in another, a...