Hecht v. Carey

Corn, Ci-t ntp Justice. Charles Hecht and John F. Carey, respectively plaintiff and defendant in error, were named as executors in the will — 160 — of Julia F. Scliweicker't. 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 bj' 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 Wyo — 161 — ming 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 the said Charles Hecht, by his attorney, now and here excepts.” Section 4622, Revised Statutes, above referred to, provides for the suspension of the powers of the executor when, among other causes, the judge has reason to believe that such executor “has permanently removed from the state.” And Section 4623 provides that if upon the hearing the court “is satisfied that there exists cause for his removal, his letters must be revoked.” Plaintiff in error alleges that the orders suspending and removing him were erroneous. There can be no question that, under the general rule, and independent of statute, a non-resident of the state in which the will is admitted to probate may qualify and act as executor. (11 Am. & Eng. Ency., 753, and authorities cited.) Our statute (Section 4570) clearly authorizes the appointment of a non-resident as executor, provided he is a resident and citizen of the United States. Moreover, while Section 4637 expressly declares that no person is competent to serve as administrator who is not a bona fide resident of this state, Section 4628, in detailing the disqualifications which debar a person from serving as executor, significantly omits the fact of non-residence from the enumeration. It being the law of this state, then, that a non-resident may qualify and serve as an executor, is it competent for the court, by virtue of Section 4622, providing for his suspension when he “has permanently removed from the state,” to suspend or remove an executor who was a non-resident when letters testamentary were issued to him, upon the sole ground of his continued non-residence? Very clearly, we think, it is not, and that the statute does not require or permit such a construction. — 162 — In the first place, the expression itself, that he has “removed,” does not fairly cover the case in question, but seems to imply the necessity of some change in the status of his residence since .his appointment. And, in the second place, such an interpretation involves consequences which are absurd. As said in New York, in construing provisions similar to ours: “If Section 2685 covers cases of non-residence which existed at the time of the grant of letters, this result follows : that, though in the absence of objection, a non-resident has an absolute right to letters even without giving a bond, and though he has that right, even in the face of objection, upon furnishing such bond, the letters must as soon as granted be taken awa)'- if any person interested in the estate demands it. An interpretation which involves such absurd consequences should certainly be avoided, if the language to be interpreted is capable of some other sensible construction.” (Postly v. Cheyne, 4 Demarest, 492.) Under such a construction, the absurdity is even more glaring in this state, for not only has the nonresident an absolute right to letters under Section 4570, but by Section 4622 whenever the judge “has reason to believe, from his own knowledge or from credible information,” that the executor has removed from the state, “he must, by an order entered upon the minutes of the court, suspend the powers of such executor or administrator until the matter is investigated,” and it is not necessary that anyone should have demanded such suspension. So that it might readily occur that the judge, knowing in advance that the applicant was a non-resident, would find himself bound to issue the letters and immediately afterwards, upon his own motion, to suspend the executor’s powers as a step toward his removal. Such a construction ought not to be adopted unless the language imperatively demands it, which, as we have already seen, it clearly does not. These provisions of our code were adopted from that of California, and we think the view taken of the matter by the Supreme Court of that state is the reasonable one. A — 163 — non-resident may be appointed and act as executor in this state, but he must come here within a reasonable time and personally submit himself to the jurisdiction of the court and personally conduct the settlement of the estate. (In re Brown, 80 Cal., 381.) They further hold, however, and we think reasonably', that while the phrase “has permanently removed from the state” may more properly refer to a resident executor who has permanently removed from the state, the reason for revoking the letters in such case applies equally to a non-resident executor who comes here to receive his appointment and then permanently withdraws from the state and remains away. It is his permanent absence from the place where the business is to be transacted, beyond the process of the court and where the ■creditors of the estate and others having business' with it ■cannot reach him, that creates the disqualification; and this is equally true of both resident and non-resident executors. The California court disclaim any intention to. destroy, by construction, the right of a testator to name a non-resident as his executor, but say that the statute should be so construed as to give ground of removal of a non-resident executor when he fails to come to this state ■ and personalty conduct the business of the estate at such times and as frequently as the interests of the estate and of those concerned In its settlement may require. (Estate of Kelley, 122 Cal., 379.) In the case under consideration, however, it is not only recited in the order that the plaintiff in error was removed •expressly upon the ground and for the reason of his non-residence, and that no other evidence was introduced upon the hearing than the record and papers on file in the matter, but it is also recited that he was present in court at the hearing, and it appears from the papers in the casé filed In this court that, within a month of his suspension, he was personally present in the state and attending to the business of the executorship. Indeed, he seems to have participated personally in the last business of the estate prior to the — 164 — suspension, so far as it is shown by the papers in the case. It is apparent, therefore, that he had not permanently removed from the state in the sense of having permanently absented himself from the place where the business was to be transacted or withdrawn himself beyond the process of the court. We are of the opinion, therefore, that the orders suspending and removing the plaintiff in error from his executorship were erroneous and without authority of law. But counsel for defendant in error alleges in his brief that a hearing was had on the petition of one Sophia Pickard práying that the inventory and appraisement filed by the executors be set aside and that the order of the court confirming the sale of certain real estate be vacated; and that evidence was taken on this and other hearings in the course of the 'administration which, if before this court, would show such misconduct as executor upon the part of plaintiff in error as made it the duty of the court under the law to suspend his powers. That, therefore, even if it should be found that the cause of removal stated in the order was not sufficient, or was not the real cause upon which the court acted, this court ought not to set aside such order. And counsel has filed a motion “for an order to the clerk of the District Court directing said clerk to send up a full transcript of the record and the testimony taken in this case.” But it must be borne in mind that this court has no original jurisdiction in the matter, but its jurisdiction is purely appellate. Under the statute, in the case of charges against an executor, he must be cited to appear and show cause why he should not be removed. Pie may answer or demur, and the issue thus raised must be determined by the court or judge. By the express terms of the order of removal in this case, the only issue heard or determined was the question of his non-residence. No issue involving misconduct upon his part was determined by the court below. So that, if evidence upon that question was received by the District Court and if it were before us, it would be entirely irrelevant and immaterial as affecting the controversy in — 165 — this court, for the reason that we are without jurisdiction or authority to go into the lower court and remove the executor for misconduct, and no such judgment or determination of that court is before us by any proceeding in error. It does not affect the question that this court is empowered by statute in certain cases to render such judgment as the court below should have rendered. It can only do so when the issue has first been heard and determined in the inferior court and is before this court upon proper proceedings in error. It is also urged that all the evidence taken in the court below not being before this court, the judgment of the lower court ought not be disturbed. But it is sufficient to say that no question of the weight or sufficiency of evidence is involved in the proceedings in this court. The order itself recites that it was admitted upon the hearing that plaintiff in error was a non-resident of the state and had been ever since a time prior to "the date of his appointment. There is 110 exception or objection to that finding and he was removed solely upon that ground. No amount of evidence would tend to illuminate the proposition. It is purely a question of law. The several orders of the court below suspending the powers of the plaintiff in error as executor and removing him from his executorship will be set aside and reversed. Reversed. Potter, J., concurs.