Security-First Nat. Bank of Los Angeles v. King, 1774

• Decision Date: 05 July 1933
• Docket Number: 1774
• Citation: 46 Wyo. 59,23 P.2d 851
• Parties: SECURITY-FIRST NAT. BANK OF LOS ANGELES v. KING, ET AL
• Court: Wyoming Supreme Court

23 P.2d 851

46 Wyo. 59

SECURITY-FIRST NAT. BANK OF LOS ANGELES v. KING, ET AL

No. 1774

Supreme Court of Wyoming

July 5, 1933

ERROR to District Court, Fremont County; EDGAR H. FOURT, Judge.

Action by the Security-First National Bank of Los Angeles, executor under the last will of Charles Henry King, deceased, against Leslie L. King and Theodore Becker, Ancillary Executors of Testator's estate. There was a judgment of dismissal and plaintiff brings error. The material facts are stated in the opinion.

Reversed and Remanded.

For the plaintiff in error there was a brief by F. A. Michels and G J. Christie of Lander, Wyoming, and L. F. Chase of Los Angeles, California, and oral arguments by Messrs. Christie Michels and Chase.

The probate court had jurisdiction to require an accounting by executors for the property claimed by them as gifts; when an executor qualifies as such in a proceeding in the court sitting in probate, he is subject to the jurisdiction of the court to determine what property of the estate he shall be chargeable with.

Estate of Roach, (Calif.) 281 P. 607; Estate of Kelpsch, (Cal.) 265 P. 215; Bauer v. Bauer, (Calif.) 256 P. 820; Estate of Fulton, (Calif.) 205 P. 681; Stevens v. Superior Court, (Calif.) 99 P. 512; Estate of Hall, (Calif.) 98 P. 269; Estate of Burdick, 112 Cal. 387; Estate of Roeske 205 Ill.App. 366; In re Hermann's Estate, 226 P 543, 75 At. 98; State ex rel Barker v. District Court of 83 Judicial Dist., (Mont.) 68 P. 856; In re Niles, 126 N.Y.S. 1066; In re Cavanaugh, 105 N.Y.S. 850. In jurisdictions like Montana and California, where the district or superior court of general jurisdiction sits in probate, the same rule is recognized. See authorities cited supra, also Wood v. Wood, 25 Wyo. 26, 164 P. 844. The Wyoming probate code requires executors to account for all property, including all just claims of decedent against the affiant.; the statutes relating to procedure are Sections 88-2201, 2301, 2306, 2308, 2309, 2501, 2502, 2503, 2602 R. S. 1931. Attention is also directed to Sections 88-1301, 1302, 1303. The court may examine the executor or administrator, and if he has been guilty of neglect, waste, embezzlement or mismanagement, his letters must be revoked. Sec. 88-2704 R. S. 1931. The court having heard the evidence, indicating that a large part of the property belonged to the estate, should have under the statute, suspended the executor and revoked his letters. The petitioner is entitled to bring this proceeding: (1) As executor; (2) As trustee; and (3) Because all question of its capacity was waived by the executors in answering to the merits without raising the question of capacity. The reason for not recognizing the right of foreign executors to bring an independent action is for the protection of local creditors. Wells v. Davis, 261 S.W. 58; Fox v. Tay, 89 Cal. 339. However, where the executor acquires property for the estate by action, which did not accrue to the decedent himself, he is entitled as an individual to bring an action in a foreign jurisdiction. Fox v. Tay, 89 Cal. 339; Reed v. Hollister, 188 P. 170; Kaye v. May, 296 F. 460. The domiciliary executor is entitled to collect debts in a foreign jurisdiction, and a discharge by him is a good acquittance, even as against a subsequently appointed ancillary executor Klein v. French, 57 Miss. 662; Wilkins v. Ellett, 108 U.S. 256; Schluter v. Bowery Sav. Bank. 117 N.Y. 125; Reynolds v. McMullen, 55 Mich. 568; Gray's Appeals, 116 Pa. St. 256. The usual custom is for the ancillary executor to complete the administration and remit the net proceeds to the domiciliary executor after payment of all local creditors. The question here is whether the domiciliary executor can appear as a party interested in the estate to petition, within the ancillary proceedings, for an accounting for the benefit of the estate. It has been held that a foreign executor is such party interested In re Davis' Will, 92 N.Y.S. 392. A contrary dicta appears in the Estate of Rawitzer, 166 P. 581, Hayden v. Kirby, 72 S.W. 198. Unless the right of a foreign executor to sue is raised by demurrer or answer, the objection is waived. Farmers' Trust v. Bradshaw, 242 N.Y.S. 598; Sparks v. Nat'l Masonic Ass'n (Iowa) 69 N.W. 678; Berlin v. Sheffield Co. (Ala.) 26 So. 933; Palms' Adm'rs v. Howard, (Ky.) 102 S.W. 267; N.W. Mutual Life v. Lowery's Adm'rs., (Ky.) 20 S.W. 607. This court should require the executors to account for all of the property described supra, as property of the estate. Leslie L. King occupied a fiduciary relationship to his father and any gift made to him is presumptively fraudulent. Nobles v. Hutton 7 Cal.App. 14; Soberanes v. Soberanes, 97 Cal. 140; Roller v. Roller, 203 N.W. 41; 28 C. J. 670 Sec. 72. There is no presumption in favor of a gift, and all the elements of a gift must be proven in order to establish it. Denigan v. Hibernia Savings, 127 Cal. 137; Freese v. Odd Fellows' Bank, 136 Cal. 662; Rothwell v. Taylor, 135 N.E. 419; 28 C. J. 669; Bolton v. Bolton, 138 N.E. 158. To constitute a valid gift inter vivos the donor must part with all control and dominion over the property. Begovich v. Kruljac, 38 Wyo. 365; Hecht v. Shafer, 15 Wyo. 34; Jones v. Bank, (Calif.) 256 P. 247; Beebe v. Coffin, 153 Cal. 174; Crane v. I. Seymour Crane, Inc., 135 A. 782; Pullen v. Bank, 138 Cal. 169; Edwards v. Guaranty Trust Co., 47 Cal.App. 86; Provident Institution v. Sisters of the Poor, 87 N. J. Eq. 424. The gifts made prior to 1925 should be set aside. There is no evidence in the record concerning these transfers, except: (1) That the stock was actually transferred to Leslie L. King; (2) That at the time, Leslie L. King bore a fiduciary relationship to his father; (3) decedent continued to exercise control over the corporations as though such corporations were his own property, and received all dividends. The gift of 397 shares of King Investment Company, 62 shares of Riverton Lumber Company and 73 shares of Shoshoni Lumber Company were invalid. The transfers were made in apprehension of attachment proceedings against decedent in Wyoming. The cancellation of the indebtedness in the sum of $ 51,844.84 by the bookkeeper was a mere bookkeeping entry to balance the books. Leslie L. King should be held liable for advances in the sum of $ 24,299.21 received by him. The Lincoln automobile should be accounted for as an asset of the estate. In the light of the power of the Supreme Court under Section 89-4819 R. S. 1931, this court should by its own direct order grant relief prayed for.

For defendants in error there was a brief by Bryant S. Cromer, of Casper, Wyoming, A. H. Maxwell of Lander, Wyoming, and Donald Spiker of Riverton, Wyoming, and oral arguments by Messrs. Cromer, Maxwell and Spiker.

Plaintiff as executor in California has no right or power in the courts of Wyoming. Lewis v. Adams (Calif.) 7 P. 779-781; 8 P. 619; Wharton Conflict of Laws (2d Ed.) 584; Lefebure v. Baker (Mont.) 220 P. 1111. There is no privity between administrators or executors in different states. Stacy v. Thresher, 12 L.Ed. 343; 1 Woerner A. L. A (3d Ed.) 558. There was no waiver by defendants of objections to appearance of the California executor in this case. The probate court was one of limited jurisdiction, requiring proof of all facts. Phillips Code Pleading 162. If the court had found for the plaintiff, on the question of jurisdiction, it would not have been sufficient. 12 Ency. Pl. & Pr. 213. The court expressly found that it did not have jurisdiction of all parties or subject matter; defendants could not waive jurisdiction. Dixon's Admrs. v. Ramsay's Admr. 3 Cranch 317, 2 L.Ed. 453; Noonan v. Bradley, 19 L.Ed. 757; Moore v. Mitchell, 281 U.S. 17; Colburn v. Latham, (S. D.) 143 N.W. 278; Lefebure v. Baker (Mont.) 220 P. 1111; Lusk's Admrs. v. Kimball (Vir.) 87 F. 545; In re Kingsley 160 F. 275; Wilson v. Hartford F. Ins. Co. 164 F. 817. The authorities cited by plaintiff on the question of jurisdiction are not in point. Even if objections to plaintiff's appearance had been waived, this is a new action and there is no waiver. Phillips Code Pleading 557; 3 C. J. 304; 7 Ency. Pl. & Pr. 823; Levering v. Bank 87 O. S. 117; 100 N.E. 322; Taylor v. Boyd, 3 Ohio 354; International Bank v. Jenkins, 104 Ill. 151; State v. Preston (Nev.) 97 P. 388; State v. Confield (Fla.) 23 So. 591; Barrett v. Whitmore (Wyo.) 207 P. 71. Plaintiff does not appear as beneficiary under the Will or as Trustee, and is neither. Winning v. Silver Hill Oil Co. (W. Va.) 108 S.E. 595; In re Rowitzer's Estate, 166 P. 582. The petition in error is alleged to be based on a petition filed in the probate court not authorized by our law and on which no order was made. Any proceedings under Sec. 88-2402 against Wyoming executors was a nullity. Mentzer v. Bevington, 42 Ohio St. 325; 2 Woerner A. L. A. (3d Ed.) 1027. There was no attempt to secure an order suspending powers of the executors under Section 88-1301 R. S. 1931. The procedings held are not based on Article XIII or Sec. 88-2704 R. S. 1931. The inventories are not involved in this proceeding. 2 Woerner A. L. A. (3d Ed.) 1008. This court has held repeatedly that our probate court is of limited and special jurisdiction. In re Black's Estate, 30 Wyo. 55; Church v. Quiner, 31 Wyo. 222; Barrett v. Whitmore, 31 Wyo. 301. If the probate court has jurisdiction to determine title to the property involved, that jurisdiction does not exist in this proceeding. The Security-Trust & Savings Bank of Los Angeles was appointed Trustee and not the Security-First National Bank of Los Angeles. (See record 134-429.) The bank and heirs are not in privity. This cause will not determine the rights of the heirs or legatees. 2 Woerner A. L. A. (3d Ed.) 1122. The question of title to the property in dispute...