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In Re McKay's Estate

December 31, 1919


Appeal from Second Judicial District Court, Washoe County; George A. Bartlett, Judge.

H. V. Morehouse and Percy & Smith, for Appellant.

Fred C. Peterson, C. F. McGlashan, and Hennessy & Peterson, for Respondents.

By the Court, Ducker, J:

The appellant, Bertha Laughton, is a grandniece of the deceased, Stewart McKay, and claims that he died intestate as to certain lands located in Washoe County, Nevada.

Stewart McKay died in the State of California on the 3d day of February, 1917, and left no wife, or issue, or father, or mother, or brother, or sister surviving him. His nearest of kin are James A. Fraser, Addie Fraser Gunnarson, Tillie Fraser, and Jessie Fraser, surviving children of a deceased sister. The appellant's mother, Hughena Sapp, was a sister of said children, and died prior to the death of Stewart McKay.

The deceased, Stewart McKay, was possessed of certain property in California and lands situated in Nevada at the time of his death. He left a will in which said James A. Fraser, Addie Fraser Gunnarson, and Tillie

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Fraser, were named executor and executrices of said estate.

The administration of said estate in the Second district court of Washoe County, Nevada, is ancillary to the probate of said will in the State of California. The said executor and executrices filed a petition for distribution in the Second judicial district court, to which appellant filed her objections, and a petition praying that it be adjudged and decreed by the court that the said Stewart McKay died intestate as to said real property, and that she be decreed to be an heir of said decedent by representation through her deceased mother, Hughena Sapp, and entitled to an undivided one-fifth interest in said real estate. A demurrer to her petition was filed by the executor and executrices, which was sustained by the court, and her petition denied. It was further ordered and adjudged that the said Stewart McKay, deceased, died testate as to the real property involved herein, situate in the county of Washoe, State of Nevada. Hence this appeal.

The respondent heirs, the nephew and nieces of Stewart McKay, deceased, moved to dismiss the appeal, on the ground that appellant is not an heir at law and is therefore not a person entitled to appeal, under section 5327 of the Revised Laws of Nevada. This section provides that “any party aggrieved may appeal in the cases prescribed in this title.” If appellant is not an heir at law of the deceased, Stewart McKay, she is not a party aggrieved by the ruling of the court below, and not authorized to appeal.

1. Ordinarily questions which do not pertain to the regularity and efficacy of an appeal, but affect its merit, ought not to be determined on a motion to dismiss the appeal. But a party's right to be heard upon the merits of an appeal is a statutory right, which depends entirely upon whether such party is within the general class designated by the statute. It is obviously a preliminary question, which should be determined in advance of a hearing on the merits and at the earliest opportunity.

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In Amory v. Amory, 26 Wis. 157, under a statute providing that “any person aggrieved by any order, sentence, judgment or denial of a judge of the county court, may appeal therefrom to the circuit court for the same county,” the court said:

“The question whether the party appealing in any case is a person thus designated by the statute, and to whom the right of appeal is given, is essentially a preliminary one. The objection being raised that the appellant is not such person, but a stranger to the order or sentence appealed from, it is clearly in the nature of matter in abatement, which, like any other, should be brought forward before further steps are taken, though not waived, perhaps, if not so brought forward. If sustained, it goes to show that the party appealing, or attempting to do so, cannot prosecute that appeal, nor any other, and that the merits of the order or sentence appealed from should never be tried at his instance or suggestion. It follows, therefore, that his appeal should be dismissed, and that, too, at the earliest possible moment when the fact can be judicially ascertained. The reason and propriety of this rule or mode of proceeding are obvious to require comment or explanation.”

The appellant in the case, supra, claimed to be the widow of the testator, James Amory, and had attempted to contest the probate of the will.

So in Hadfield v. Cushing, 35 R. I. 306, 86 Atl. 897, it was held, on a motion to dismiss an appeal, that an expectant heir of a grandfather then living was not aggrieved by a decree of the probate court appointing a guardian for such grandparent, so as to entitle her to appeal therefrom. The motion to dismiss the appeal in the preceding case was made under a statute of the State of Rhode Island which provides:

“Any person aggrieved by an order or decree of a court of probate may, unless provision be made to the contrary, appeal therefrom to the superior court for the county in which such probate court is established,” etc.

Appellant herein expresses a willingness that the

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question of her heirship be determined on the motion, if it can be done, but questions the right of this court to decide it in this manner, for the reason that her heirship was the very point passed upon by the court below, and thus becomes a material question for this court to decide upon appeal. Her counsel cite In Re Mendenhall's Will, 43 Or. 542, 72 Pac. 318, 73 Pac. 1033, Barnhart v. Fulkerth, 92 Cal. 155, 28 Pac. 221, Oregon Timber and Cruising Co. v. Seton et al., 59 Or. 64, 111 Pac. 376, 115 Pac. 1121, and Hayne, New Trial & App. (Rev. Ed.) sec. 272, and 2 Pl. & Prac. 346, in support of her contention. These authorities sustain the general rule that on a motion to dismiss an appeal the court will not consider the merits of the controversy. In none of these, and in no other cases, so far as we have been able to ascertain, was the question decided, under a statute similar to ours, that where the point on appeal involved the right of appeal it could not be determined on a motion to dismiss.

2. On the motion before us we are confronted with the query: Was the appeal properly taken? If in solving this question it appears that the appellant is not a party aggrieved, the appeal must be dismissed.

Assuming, for the purpose of this decision, that Stewart McKay died intestate as to the real estate in question, the estate is cast into the fourth subdivision of section 259 of the act to regulate the settlement of estates of deceased persons (Stats. 1897, c. 106), as amended in 1915 (Stats. 1915, c. 130), for the intestate left no issue, nor wife, nor father, nor mother, and no brother or sister living at his death. But, as our decision must rest upon a construction of the entire section, we will set it forth. The section reads:

“Sec. 259. When any person having title to any estate, not otherwise limited by marriage contract, shall die intestate as to such estate, it shall descend and be distributed subject to the ...

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