Harrington's Estate, Matter of, 5606

• Citation: 648 P.2d 556
• Decision Date: 22 July 1982
• Docket Number: No. 5606,5606
• Parties: In the Matter of the ESTATE of Donald D. HARRINGTON, Deceased. Sybil Buckingham HARRINGTON, Appellant (Objector), v. Leon L. HOYT, Jr., and Hughes Seewald, Executors of the Estate of Donald D. Harrington, Deceased, Appellees (Petitioners).
• Court: United States State Supreme Court of Wyoming

Page 556

648 P.2d 556

In the Matter of the ESTATE of Donald D. HARRINGTON, Deceased.

Sybil Buckingham HARRINGTON, Appellant (Objector), v. Leon L. HOYT, Jr., and Hughes Seewald, Executors of the Estate of Donald D. Harrington, Deceased, Appellees (Petitioners).

No. 5606.

Supreme Court of Wyoming.

July 22, 1982.

Oscar A. Hall, Rawlins, for appellant.

K. W. Keldsen, Rawlins, for appellees.

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

THOMAS, Justice.

The issue to be dealt with in this case is whether in Wyoming the probate court has jurisdiction to adjudicate title to real property which is included among the assets of an estate. The specific claim presented is that of a surviving spouse to have set over to her one-half of certain oil and gas interests by virtue of the application of the community property laws of the State of Texas, which is the place of domicile of the decedent. The district court, sitting in probate, denied the claim, holding that the real property situated in Wyoming must pass in accordance with Wyoming law; and that the community property laws of the State of Texas did not govern the disposition of such property. We shall hold that the probate court is without jurisdiction to adjudicate title to such property, and for that reason only we shall affirm the decree of final distribution of the estate from which this appeal is taken.

A Petition for Ancillary Probate of Will was filed in the District Court of the Second Judicial District in Carbon County by the executors of the estate of Donald D. Harrington. The Wyoming assets for which probate was sought are oil and gas interests which were appraised at a value of $1,089,030.00. In the First and Final Account and Petition for Distribution of the Estate the executor represented and petitioned:

"That under the terms of the Last Will and Testament of the decedent, all of the above described property in said estate be set over and distributed unto THE DON & SYBIL HARRINGTON FOUNDATION, a non-profit Texas corporation."

The surviving spouse, Sybil Buckingham Harrington, then filed Objections to First and Final Account and Petition for Distribution of Estate in which she asserted that the oil and gas and other mineral interests were acquired by the decedent with community property funds and that one-half or 50 percent of the assets should be set over and conveyed to her. Her prayer for relief reads as follows:

"WHEREFORE Sybil Buckingham Harrington, surviving spouse of decedent and Objector herein, prays that one-half (1/2) of the assets of this estate be set over to her, an interested party, wife and surviving spouse of the decedent herein, and for such further and different relief as is proper in the premises. And Objector further prays that her objections to the said First and Final Account and Petition for Distribution of said Estate be set down for hearing at a time and place pursuant to law."

This pleading was served upon counsel for the executors and others listed as heirs, devisees and legatees in the Petition for Ancillary Probate of Will by ordinary mail. The record does not disclose actual notice to the heirs, devisees, and legatees of the ancillary probate nor of the objections.

A stipulation of facts then was filed in which the executors and the objector agreed to the following statement of facts:

"Donald D. Harrington died on April 27, 1974. At the time of his death, he was a resident of Potter County, Texas, and left an estate in the Counties of Carbon and Campbell, Wyoming. His estate in these counties consisted of royalty mineral interests having an appraised value of $1,089,030.00, which interests are more "The title to all of said mineral interests are in the name of the decedent, Donald D. Harrington. The Executors admit and it can be agreed as a matter of fact that all of the assets were acquired with community property funds of the decedent and the surviving spouse.

particularly set forth in the inventory and appraisement filed herein. His sole surviving heir was his widow, Sybil Buckingham Harrington, of Amarillo, Texas. Mr. Harrington left a Last Will and Testament, which, in addition to a number of specific bequests, gave, under Section Five thereof, to his wife an amount equal to the maximum 'marital deduction allowed his estate under the Internal Revenue Code,' which amount was satisfied out of other properties in the estate in the probate thereof in the County Court, Potter County, Texas. All of the specific bequests and the marital deduction bequest to the surviving spouse being satisfied out of assets outside of the State of Wyoming, the assets in the State of Wyoming are subject to distribution under the residuary clause, Section XII, of the Last Will and Testament. Under this residuary clause, the residuary (sic) of the estate was given to The Don & Sybil Harrington Foundation, a nonprofit Texas corporation, organized and operated exclusively for religious, charitable and educational purposes. The Last Will and Testament of said decedent was duly admitted to probate in the Probate Court of Potter County, Texas, and upon petition for ancillary probate of said Will, it was admitted to probate in the District Court of Carbon County, Wyoming, on January 22, 1975. After publication of notice of final settlement, the Executors filed a first and final account and petition for distribution of the estate herein on November 28, 1980. On December 8, 1980, Sybil Buckingham Harrington, the surviving spouse of Donald D. Harrington, Deceased, filed herein her objections to first and final account and petition for distribution of estate, claiming that all of the assets of the estate situated in the State of Wyoming were acquired with community property funds and, therefore, as the owner of one-half of the community property funds the surviving widow is entitled to one-half of the assets of said estate situated in the State of Wyoming.

"The Wyoming Inheritance Tax Department and the Internal Revenue Service have recognized the community property interests of Mrs. Harrington and accepted one-half of the appraised value for state inheritance and federal estate tax purposes."

After receiving memoranda from the parties the court heard argument, wrote an opinion letter to the parties, and then entered its Decree of Final Distribution of Estate. In the Decree of Final Distribution of Estate the district court, sitting as the probate court, dealt with this issue as follows:

"11. That on December 8, 1980, Sybil Buckingham Harrington, widow of the decedent, filed herein objections to the first and final account and petition for distribution of estate, claiming that one-half of the assets of said estate should be set over to her for the reason that the same were acquired with community property funds. That pursuant to notice, hearing was held by the Court, K. W. Keldsen, attorney for the Estate, of Rawlins, Wyoming, appearing on behalf of the Executors, and Oscar A. Hall, Attorney at Law, Rawlins, Wyoming, appearing on behalf of Sybil Buckingham Harrington, Objector, and the parties having filed herein a Stipulation of Facts and having filed Memorandum of Authorities herein, and the Court being well advised in the premises, finds that the community property laws of the State of Texas do not govern the disposition of the residue of the Testator's estate to property situated in Wyoming which was acquired by community property funds and that the Estate assets of Donald D. Harrington, Deceased, must pass under the Will in accordance with Wyoming law and accordingly, unto The Don & Sybil Harrington Foundation, a non-profit Texas corporation."

The court ordered distribution to The Don & Sybil Harrington Foundation, a non-profit Texas Corporation. This appeal followed.

The appellant in her brief stated the issues as follows:

"1. Whether a decedent's widow is entitled to one-half of all of the Wyoming mineral interests in the decedent's name where those interests were acquired with community funds.

"2. Whether the decedent intended to leave only one-half of the mineral interests to the residuary beneficiary under his will."

As the dissenting opinion of Justice Raper illustrates, the first issue indeed is an intriguing one. It captures the essence of the legal problem which concerns the title to the mineral interests located in Wyoming, and presents the question as to whether those mineral interests are owned by the estate of Donald D. Harrington or whether one-half are owned by the surviving spouse. Because the probate court was without jurisdiction to adjudicate this question, we do not treat in the opinion of the court with either of the issues stated by the appellant.

It is recognized that the question of jurisdiction was not presented in argument to this court, nor was it presented in the district court. Nevertheless the rule is well established that the question of jurisdiction can never be waived, and it always is open to consideration by a reviewing court upon its own motion. Williams v. Public Service Commission of Wyoming, Wyo., 626 P.2d 564 (1981); Hayes v. State, Wyo., 599 P.2d 569 (1979); Merritt v. Merritt, Wyo., 586 P.2d 550 (1978); Pritchard v. State Division of Vocational Rehabilitation, Department of Health and Social Services, Wyo., 540 P.2d 523 (1975); Wyoming State Treasurer ex rel. Workmen's Compensation Department v. Niezwaag, Wyo., 444 P.2d 327 (1968); and Gardner v. Walker, Wyo., 373 P.2d 598 (1962).

We have recognized that the issue sought to be resolved by these parties is one over which the probate court has no jurisdiction. In Estate of Blaney, Wyo., 607 P.2d 354 (1980), this court quoted from the controlling rule stated in 1 Bancroft's Probate Practice, § 27, pp. 70-71 (2d Ed.1950), to the effect that title to property as between the estate, the heirs or devisees and a third person may not be tried in probate proceedings. See also Leach v. Misters, 13 Wyo. 239, 79 P. 28 (1905). In ...