State ex rel. Wilson v. Howard Circuit Court

• Decision Date: 01 October 1957
• Docket Number: No. 29548,29548
• Citation: 237 Ind. 263,145 N.E.2d 4
• Parties: STATE of Indiana on the Relation of William T. WILSON, as Special Administrator of the Estate of Lucy Schuler Wilson, Deceased, Petitioner, v. HOWARD CIRCUIT COURT of Indiana, Merton Stanley, as Judge of the Howard Circuit Court of Indiana, Elwood H. Hillis, as Special Administrator of the Estate of Lucy Schuler Wilson, Deceased, Respondents.
• Court: Indiana Supreme Court

Page 4

145 N.E.2d 4

237 Ind. 263

STATE of Indiana on the Relation of William T. WILSON, as

Special Administrator of the Estate of Lucy

Schuler Wilson, Deceased, Petitioner, v. HOWARD CIRCUIT COURT of Indiana, Merton Stanley, as Judge of

the Howard Circuit Court of Indiana, Elwood H. Hillis, as

Special Administrator of the Estate of Lucy Schuler Wilson,

Deceased, Respondents.

No. 29548.

Supreme Court of Indiana.

Oct. 1, 1957.

John E. Fell, Kokomo, Bishop & Bishop, Flora, Grabill & Baker, Indianapolis, for appellant.

Cole, Wildman & Cole, Peru, for appellee.

EMMERT, Judge.

This is an original action for a writ of prohibition to prohibit the Howard Circuit Court from exercising further jurisdiction in the administration of the estate of Lucy Schuler Wilson, deceased. We issued the temporary writ, and the final disposition of the action here depends on whether the respondent court or the Howard Superior Court has jurisdiction of this estate. The issue here is made possible, if not invited, by § 4-4006, Burns' 1946 Replacement (Supp.) (§ 6, Ch. 262, Acts 1953), which confers on the Howard Superior Court concurrent jurisdiction in 'all criminal and probate matters, actions and proceedings, of which the Howard Circuit Court has jurisdiction.'

The facts present a case of first impression in this State, and we have not been cited any similar case from any other jurisdiction. Lucy Schuler Wilson, the wife of relator, died April 5, 1957, leaving surviving her husband, and two children as her heirs at law. On the same day she died, William T. Wilson filed with the Clerk of the Superior Court, then in Vacation, his verified objections to the probate of 'a pretended will' of decedent, which he alleged was about to be presented for probate, providing for the disposition of her property by terms unknown to him. The same person was Clerk of both courts, and at the same time Wilson filed with the Clerk of the Howard Circuit Court, then in Vacation, his verified objections to the probate of the same pretended will.

Thereafter, but on the same day, Wilson filed with the Clerk of the Howard Superior Court his verified petition for his appointment as Special Administrator of the estate of his late wife. On April 8, 1957, the Superior Court in Term made a finding and order on this petition, and appointed relator special administrator, fixing the amount of his bond, and providing for his duties in his trust. On the same day relator filed his bond and oath and the Clerk issued him special letters of administration.

On April 8, 1957, Elwood H. Hillis filed and presented in the Howard Circuit Court a will and codicil thereto of Lucy S. Wilson, in which he was named executor, together with his verified petition for the probate of the same and the issuance of letters testamentary to him. The will was impounded and copied in the will record by the Clerk of the Circuit Court as required by § 7-116, Burns' 1953 Replacement. Thereafter, on April 11th, Elwood H. Hillis, the named executor, filed with the Howard Circuit Court, his verified petition for his appointment as special administrator, which was then granted and he qualified the same day.

The conflict of jurisdiction was presented to the Howard Circuit Court, and on May 3rd it made the following order:

'It Is Therefore, Adjudged And Decreed, That:

'1. The letters of special administration issued to Elwood H. Hillis should be and are now suspended and revoked until the further order of the Court; and it is further ordered, adjudged and decreed that the petitioner's request for an order that the will and any action to resist the probate thereof be transferred to Howard Superior Court is now denied.'

An original action in our court only brings in issue the jurisdiction of the lower court. Section 3-2201, Burns' 1946 Replacement (Supp.). State ex rel. City of Indianapolis v. Brennan, 1952, 231 Ind. 492, 109 N.E.2d 409; State ex rel. McMinn v. Gentry, 1951, 229 Ind. 615, 618, 100 N.E.2d 676. There have been many general definitions of jurisdiction in the books, but each must be understood in reference to the facts and issues under consideration, although all agree it involves the exercise of legal power by the court. As the issue is involved in this decision, jurisdiction is the legal power, as distinguished from the right, to entertain any matter or proceeding, and to act therein. Lowery v. State Life Ins. Co., 1899, 153 Ind. 100, 102, 54 N.E. 442; City of Indianapolis v. Hawkins, 1913, 180 Ind. 382, 384, 103 N.E. 10; State ex rel. Robertson v. Circuit Court of Lake County, 1938, 215 Ind. 18, 25, 17 N.E.2d 805; General Invest. Co. v. New York Cent. R. Co., 1926, 271 U.S. 228, 230, 46 S.Ct. 496, 70 L.Ed. 920, 921; Board of Com'rs of White County v. Gwin, 1894, 136 Ind. 562, 36 N.E. 237, 22 L.R.A. 402; Restatement, Judgments §§ 7-8. 'The power to decide at all carried with it the power to decide wrong as well as right. Smurr v. State, 1886, 105 Ind. 125, 127, 4 N.E. 445, supra. Snelson v. State, 1861, 16 Ind. 29, 32; Lantz v. Maffett, 1885, 102 Ind. 23, 28, 26 N.E. 195, supra.' State ex rel. City of Indianapolis v. Brennan, 1952, 231 Ind. 492, 497, 109 N.E.2d 409, 411, supra.

The power to entertain any matter and to act therein must come from the Constitution or from some statute. 'This power to act judicially is limited to that given to courts by the law of the land, and cannot be conferred by the consent or request of parties in cases where the court would otherwise be without it. It is the law which gives jurisdiction, and it must follow as a fundamental rule, applicable to all cases, that such jurisdiction can be invoked only by some method known to the law.' City of Indianapolis v. Hawkins, 1913, 180 Ind. 382, 384, 103 N.E. 10, 11, supra. 'The jurisdiction and duties of a circuit court of the State of Indiana, and the methods prescribed by which the court shall exercise its jurisdiction, must be conferred by constitutional and legislative authority.' State ex rel. Rovertson v. Circuit Court of Lake County, 1938, 215 Ind. 18, 23, 17 N.E.2d 805, 808, supra. "Jurisdiction is grounded on constitutional or statutory authority, the existence of which is always a judicial question.' Warren v. Indiana Telephone Co., supra [(1940), 217 Ind. 93, 26 N.E.2d 399].' State ex rel. Standard Oil Co. v. Review Bd., 1951, 230 Ind. 1, 14, 101 N.E.2d 60, 66.

The power to entertain a particular proceeding may depend upon compliance with statutory conditions precedent to the exercise of that power. ¹ 'Necessarily the statutes upon which the proceeding is based, if a statutory one, must be taken into consideration in determining the sufficiency of the pleading to confer jurisdiction. The averment of matters which the statute makes jurisdictional is an indispensable prerequisite to the attaching of jurisdiction over the subject matter.' I Freeman, Judgments, 5th Ed., § 338, p. 680. This court has followed this rule in special statutory proceedings unknown to the common law. State ex rel. Ayer v. Ewing, 1952, 231 Ind. 1, 14, 106 N.E.2d 441; State ex rel. Wever v. Reeves, 1951, 229 Ind. 164, 169, 96 N.E.2d 268.

The right to make a will is statutory. Pfaffenberger v. Pfaffenberger, 1920, 189 Ind. 507, 511, 127 N.E. 766. Proceedings to resist or set aside the probate of a will are also statutory. Moll v. Goedeke, 1940, 107 Ind.App. 446, 25 N.E.2d 258. Likewise the proceedings to settle an estate, whether the decedent died testate or intestate, are statutory, and once a court obtains jurisdiction over the estate, it is not ousted from that jurisdiction except pursuant to statute.

Section 7-415, Burns' 1953 Replacement (§ 1015, Ch. 112, Acts 1953), provides for the appointment of a special administrator, the provisions material to this issue here being as follows:

'A special administrator may be appointed by the court if:

'(a) * * *

'(b) * * *

'(c) If any person shall have died testate and objections to the probate of his will shall have been filed as provided by law.' ²

The Probate Code does not require the giving of notice or any hearing before the appointment. The application was by petition. Section 6-109, Burns' 1953 Replacement.

The Probate Code does not put any duty upon a named executor to petition for the probate of the will, although under § 7-104, Burns' 1953 Replacement, he may do so. ³ Section 7-103, Burns' 1953 Replacement, does require that 'After the death of a testator the person having custody of his will shall deliver it to the court which has jurisdiction of the administration of his estate.' But this does not require that the will be produced in any court other than the one which has jurisdiction of the administration of the estate.

The relator urges that § 7-102, Burns' 1953 Replacement, prevents the splitting of jurisdiction between separate courts for the administration of an estate. This section states, 'The probate of a will and the administration of the estate shall be considered one proceeding for the purposes of jurisdiction, and said entire proceeding and the administration of a decedent's estate is a proceeding in rem.' Although, perhaps, the language could have been more clear in prohibiting a splitting of jurisdiction, we are constrained to accept relator's argument that this is what the General Assembly intended. Under the prior code we held, 'The probate of a will is a proceeding in rem, defining and fixing the status of the estate. 18 Cyc. 64. The court first acquiring jurisdiction of specific property continues its authority to final determination free of any right of interference...