Wells, Fargo & Co. v. Walsh

Winslow, J. It seems clear to us that this demurrer should have been sustained. If the action be regarded as having been brought for the purpose of compelling the executor to prove the will of Walsh in this state, it cannot be maintained, for the reason that the plaintiff, as a creditor of Walsh, has the same right to produce an authenticated copy of the will and its probate in Nevada, to the county court of Jefferson county, and procure its allowance, as the defendant has. R. S. secs. 3790. 3793. The plaintiff’s [71] remedy at law is therefore entirely adequate and complete as to this part of the relief prayed for, and no interposition of a court of equity is necessary. But, if the action is brought to subject the land in Jefferson county to the trust created by the will of Walsh in favor of his creditors, the conclusive answer is that the title to the land is as yet unaffected by the provisions of the will, and consequently the plaintiff has no interest in it. This is not the case of a transfer or trust created inter partes, but a transfer in trust, created, if at all, by decree of the probate court of Story county, Nevada. The decree of that court, as to realty certainly, can have no extraterritorial effect. It cannot affect for a moment the title to real estate in Wisconsin. This is elementary law. Robertson v. Pickrell, 109 U. S. 608. The alleged title of the trustee, and the consequent interest of the plaintiff as a cestui que trust, is derived, not from the jus disponendi of the owner, but from an act of the law of Nevada; and the effect of that act is confined to the jurisdiction over which the law extends. Curtis v. Smith, 6 Blatchf. 537; McClure v. Campbell, 71 Wis. 350. Ample provision has been made by our statutes for proper proceedings by which a foreign will duly probated in the state of the testator’s domicile may be made effective as to lands owned by him within this state. R. S. secs. 2295, 3790, 3793. None of these provisions is alleged to have been complied with, consequently the provisions of the will are as yet of no effect upon the title of the land in question. The same considerations demonstrate that the plaintiff has no standing in court to attack the defendant’s alleged fraudulent tax deed. It has no lien upon, nor interest in, the land. By the Oourt.— Order reversed, and action remanded with directions to sustain the demurrer.