Hecht v. Carey

• Decision Date: 12 December 1904
• Citation: 78 P. 705,13 Wyo. 154
• Parties: HECHT v. CAREY
• Court: Wyoming Supreme Court

78 P. 705

13 Wyo. 154

HECHT v. CAREY

Supreme Court of Wyoming

December 12, 1904

ERROR to the District Court, Laramie County, HON. RICHARD H. SCOTT Judge.

The material facts are stated in the opinion.

Reversed.

W. R Stoll, for plaintiff in error.

So far as the matter of residence is concerned, a testator has the right under the laws of this state to nominate anyone he pleases as executor of his estate. The statutes expressly permit a testator to name in his will any person who is a resident or citizen of the United States, and that permission is not limited or qualified in any way. (R. S. 1899, Sec 4570.) It is the duty of the court so far as possible to carry out the will of the testator, and an executor chosen by him should not be removed unless required by the express or implied terms of the statute. Where the statute does not so provide, the court cannot remove an executor solely because he is a non-resident. Section 4616, with reference to the performance of the duties pertaining to the trust by the remaining executors or administrators when several have been appointed, and when one or more of them die or become insane, convicted of an infamous crime, or otherwise become incapable of acting, has no application in the case at bar. Neither has Section 4618, providing for the resignation of an executor or administrator. The plaintiff in error does not come within the provisions of Section 4622, for it is clear that the words "has permanently removed from the state" refers to an executor who at the time of his appointment was a resident of the state. Section 4627 requires the court to issue letters to the persons named in the will as executors who are competent to discharge the trust. The court is given no discretion in the matter. Section 4628, which specifies the various matters constituting disqualifications of an executor, does not include non-residence of an executor named in the will.

It is, we think, therefore, perfectly clear that there is nothing in the statute which prevents a non-resident named in the will from acting as an executor or which authorizes the removal of such an executor on account of his continued non-residence. Such has been the holding in California, from which state our statute upon the subject was taken. (Brown's Est., 80 Cal. 384; Kelley's Est., 122 id., 379; Bell's Est., 135 id., 194; Atwood's Est., 127 id., 427; Rathgeb's Est., 125 id., 302; Est. of Palomares, 63 id., 402.)

H. Donzelmann, amicus curiae.

If all the testimony had been incorporated in the record, it would show that the plaintiff in error wilfully failed to inventory property belonging to the estate, and that he appropriated the same to his own personal use and benefit; and, further, that he charged up against the estate his own personal bills contracted since the death of the decedent. It would further appear that certain promissory notes belonging to the estate had been withheld by the plaintiff in error, who gave as his excuse therefor that they had been presented to his wife by the decedent in her lifetime. It is wholly immaterial whether the statute or the laws of this state provide for an order of suspension, since that is the inherent power of the court. (Rathgeb's Est., 125 Cal. 302.) And the discretion of the court in such matter will not be interfered with on appeal unless it shall clearly appear to have been abused. (Bell's Est., 135 Cal. 194.)

The intent of the Legislature in enacting the probate code can only be gathered from reading the entire act, and a reasonable construction should be given to the various sections. How can it be said that a non-resident may be nominated as an executor by a testator and yet that when an executor becomes a non-resident such fact would be cause for a removal? Such a construction would be inconsistent. If the record contained all of the testimony which was received at the various hearings it would show that the plaintiff in error had removed from the state within the meaning of Section 4622, Revised Statutes, as the same is construed by the Supreme Court of California. (Kelley's Est., 122 Cal. 379.)

When it appears to the appellate court that a decision appealed from was not made upon the record alone as presented to the appellate court, and that such record is not full and complete, so as to advise the court of all the proceedings had in the court below, the appellate court will refuse to act upon such incompleted record. (Underwood v. David, 9 Wyo. 178.) Can it be assumed that if a complete record shows the facts as above stated as to the conduct of the plaintiff in error that an appellate court would undertake to set aside the order of removal, even if it should be found that the cause stated for such removal could not have been the real cause, in view of all the testimony? Even though this court should find that the order of removal was erroneous so far as the statement of the ground therefor is concerned, yet the previous order suspending the executor from further acting should stand.

W. R. Stoll, for plaintiff in error, in reply.

The amicus curiae has no standing in this court to suggest a diminution of the record. But he seeks a transcript of voluminous evidence relating only to the value of certain property, to produce which would cost a considerable sum and which would serve no useful purpose, since it could have no possible bearing upon the question arising in the case. Whenever it is sought to bring up an additional record, there must always be proof of the alleged defects, unless they would appear upon a mere inspection of the record. (2 Ency. Pl. & Pr., 310, 311.) The defect does not appear upon the present record; on the contrary, it is affirmatively shown that no defect exists; and the motion is not supported by affidavit.

It cannot be assumed that the District Court removed the plaintiff in error for any other cause than that stated in the order, and surely it cannot be assumed that the District Court would have stated in its order that the executor was removed for one reason when in fact the court was actuated by an altogether different one.

It is clear from the expressions contained in the record that the only question considered by the District Court, and the only reason assigned for its order, was the non-residence of the plaintiff in error, and that he was removed for that reason and for no other. This being so, the assertion at this time of any other ground for removal introduces an immaterial matter.

CORN, CHIEF JUSTICE. POTTER, J., concurs.

OPINION

CORN, CHIEF JUSTICE.

Charles Hecht and John F. Carey, respectively plaintiff and defendant in error, were named as executors in the will of Julia F. Schweickert. Subsequently to her death the will was probated and they were duly appointed and qualified as such executors. Afterwards, on April 27th, 1903, the court made the following order: "It having come to the knowledge of the court by the testimony of Charles Hecht, one of the executors of the above named estate, which testimony was heretofore given under oath at a hearing in which the question of the confirmation of a sale of property made by the executors of said estate, was under consideration; that said Charles Hecht is not a resident of the State of Wyoming, but is now present by counsel, it is now and here ordered, under the provisions of Section 4622 of the Revised Statutes of Wyoming, 1899, that the powers of the said Charles Hecht as such executor be suspended until the 29th day of April, A. D. 1903, at the hour of ten o'clock a. m., at which time the question of the removal of said Charles Hecht as such executor will be heard and considered by the court." And, on April 29th, the court made the following order: "It having come to the knowledge of the court by the testimony of Charles Hecht, one of the executors of the above named estate, and who was nominated as such executor by the will of the said Julia F. Schweickert, deceased, which testimony was heretofore given under oath at a hearing in which the question of the confirmation of a sale of property made by the executors of said estate was under consideration; that said Charles Hecht is not a resident of the State of Wyoming, and the court having thereafter, on the 27th day of April, A. D. 1903, made an order suspending the said Charles Hecht as executor of said estate, and setting the matter for a final hearing on the 29th day of April, A. D. 1903, at which time the said Charles Hecht was present in court, and the matter came on to be heard upon the record and papers on file in the matter, and no evidence other than such record and papers on file being introduced, and it being admitted by the said Charles Hecht and it appearing to the court that the said Charles Hecht is a non-resident of the State of Wyoming and has been such non-resident ever since a time prior to the date of his appointment as such executor, and the matter being fully argued by counsel, and the court being fully advised in the premises, it is ordered that said Charles Hecht be and he is forthwith removed as executor of the estate of the said Julia F. Schweickert, deceased, expressly upon the ground and for the reason that he is a non-resident of the State of Wyoming, to all of which...