#### Smith and another, Ex’rs, vs. Peckham, Executrix.

Action by Foreign Executor: Pleading: Probate Court. *(1} When foreign executor may sue here. (2) How plaintiff's mere disability must be pleaded. (3) Query as to reversal of judgment for plaintiff’s disability. (i) How question of disability of claimant in probate court must be raised. (5) When foreign executor may maintain appeal from probate court, his prior disability being removed after the*appeal, *(6) What probate court has jurisdiction of wjll. One suing as executor must allege testator's residence at death.*

1. Under the statute authorizing a foreign executor or administrator of the estate of a person not a resident of this state at the time of his death, to prosecute actions here in behalf of such estate, “upon filing an authenticated copy of his appointment in the probate court of any county of this state” (Tay. Stats., 1720, § 25), the disability of such executor, etc., to sue before such filing is *mere disability,*and not want of title.

2. Before the letters testamentary, etc., are filed here, such disability can be taken advantage of, by answer, only by way of *abatement.*

8. A mere disability to sue, not going to the right of action, may be cured *pendente lite;*and *quaere*whether (under R. S., ch. 125, sec. 40) a judgment on the merits would be reversible for such disability, even where the objection had been seasonably taken, and overruled.

4. An objection in probate court to a claim against an estate on the ground that it was “outlawed and illegal and void for usury,” *held,*not to , raise the question of the disability of the claimants.

5. On appeal torn an order allowing such claim, it appeared from the formal complaint of the claimants in the circuit court, that their foreign letters testamentary of the estate in whose behalf the claim was made, were first filed *after*the appeal. *Held,*on demurrer, that the complaint was not bad for that reason.

6. The proper jurisdiction for the probate of a will is that of the testator’s domicile at death; and the complaint herein not showing the residence of plaintiff’s testatrix at her death, an order overruling a demurrer thereto is reversed with directions to allow an amendment of the complaint.

*415APPEAL from tbe Circuit Court for *Milwaulcee*County.

On March 30, 1874, a claim was filed in tbe probate court for Milwaukee county, against tbe estate of G. "W. Pocldiam, deceased, by tbe plaintiffs as executors of tbe estate of Eliza Griggs, deceased, of Albany county, New York. ' On April 20, 1874, objection to tbe allowance of tbe claim was made in writing, on tbe grounds tbat it was outlawed, and was void for usury. On October 23, 1874, tbe claim was allowed by the county judge. On appeal, tbe circuit court made an order, May 3, 1875, tbat an issue be made up; and accordingly tbe complaint was filed on tbe 4th of May, and on May 27 an amended complaint was filed. Tbe latter alleged, in substance, tbat on April 9, 1863, George *~W.*Peckham made and delivered to Eliza Griggs a promissory note (describing it), on which divers payments were made between April 9, 1864, and April 9, 1869; tbat afterwards Eliza Griggs died, leaving a will, “ which was duly proved and admitted to probate in tbe office of tbe surrogate of tbe county of Albany, in tbe state of New York, and letters testamentary were thereupon duly issued ” to tbe plaintiffs, who bad qualified and entered upon their duties as such executors, which office they still held; tbat on May 21, 1875, they bad caused to be filed in the probate office of tbe county court of Milwaukee county, an authenticated copy of such appointment; and tbat no executor or administrator of such estate bad been appointed- in this state. There were further averments of tbe representative character of tbe defendant, and tbat tbe note in suit was unpaid, etc.

Tbe defendant demurred to tbe complaint on tbe grounds,. 1. Tbat tbe plaintiffs bad no legal capacity to sue, because it appeared from tbe complaint tbat they brought tbe suit as foreign executors, and it was not alleged tbat, before tbe commencement of tbe suit, they bad filed a copy of their appointment, etc. 2. Tbat tbe complaint did not state a cause of action, because it did not allege that any proceedings bad been taken in any court to cause tbe assets of said Eliza Griggs *416to be recovered or administered according to the laws of this state, or by which the plaintiffs had acquired any title to the alleged demand as the representatives of the said Eliza Griggs. From an order overruling the demurrer, the defendant appealed.

*J. P. O. Oottrill,*for appellants:

The demurrer should have been sustained. 1. In this country, formerly, the power of granting letters testamentary and of administration was vested in the ecclesiastical courts. Dayton on Sur., 1 and 2; 2 Black. Com., 494; Williams on Ex’rs, 261. Although the character of the tribunals by which this power is exercised in the different states may differ in some particulars, the 'source of authority is the same, viz., the sovereignty of the state within which it is exercised. It is universally held that the executor or administrator appointed in one state cannot prosecute a suit in the courts of another state, or obtain title to the assets of his decedent therein, unless invested with such authority and title by the laws of that state. Story’s Confl. of Laws, 412, 513, 514; *Noonan v. Bradley,*9 Wall., 394; *Thompson v. Wilson, 2*N. H., 292; *Lang-don v. Porter,*11 Mass., 813; *Goodwin v. Jones,*3 id., 512; *Ohapman v. Fish,*6 Hill, 554. 2. The demurrer was not too late, the objection being not only to the disability of the plaintiffs, but to the jurisdiction of the court, and that the complaint does not state facts sufficient to constitute a cause of action. The objection filed to the claim merely admitted that *Smith*was a foreign executor. R. S., ch. 75, secs. 7 and 9; *Noonan v. Bradley,*9 Wall., 394. There were no pleadings in the matter Rom which the appeal was taken. R. S., ch. 101, secs. 1, 25. The proceedings before the commissioner . were equivalent to the service of a summons in an action, and no more. *Fenner v. Manchester,*6 R. I., 142. 3. The plea *ne migues administrator*is a plea in bar as well as in abatement. *Noonan v. Bradley, supra; Langdon v. Potter, 11*Mass., 313; 1 Ohitty’s PL, 435. 4. The filing after suit *417brought of the “ authenticated copy,” etc., required by the statute (R. S., ch. 14, sec. 25) cannot help the plaintiff. There must be a strict compliance with the statute. *Mcmsfield v. Turpim,,*32 Ga., 260.

*F. W. Cotzhausen,*for respondent:

1. The appellant, by objecting to the allowance of the claim on specific grounds, and by answering on the merits, waived all objections to the legal capacity of the plaintiffs to' sue. The appearance and objection to the petition in probate was tantamount to an answer. *Brook v. Chappell,*34 Wis., 405; *Mow v.*Dodson, 14 id., 279; *Johnson v. Wilson,*1 Pin., 65; *Sanford v. McCreedy,*28 "Wis., 103. 2. The disability of plaintiffs was removed by filing the authenticated copy on May 21, 1875. The defect, if any, is of a technical nature, and should be disregarded. *Sabime v. Fisher,*37 Wis., 376. The court had the power to allow letters testamentary to be filed at any stage of the suit, *nwic pro tv/ne.*

Ryast, O. J.

Whatever difficulty there may be in the question elsewhere (Story’s Confl., §§ 507-529), there appears to be no doubt here that the disability of a foreign executor or administrator to sue in the courts of this state, is mere disability and not want of title.

Under our statute (Tay. Stats., ch. 147, § 25), a foreign executor or administrator takes here no new letters, authority or title, but is required only to record the letters, authority and title from the foreign court. Like the record of a conveyance, this is matter of evidence of title, not of title; the title still resting on the grant of the foreign court, though it can be asserted in our courts only upon the record of it. The filing of the foreign letters here is purely ministerial, requiring no action of the court here and giving it no jurisdiction. Before the record, the general disability of a foreign executor or administrator to sue outside of the state granting his letters *418continues here; witb tlie record, tbe disability ceases upon tbat proof of title under tbe foreign jurisdiction.

Even before tbe record, tbe disability can be taken advantage of only by way of abatement. So far as tbe case can bear any relation to tbe law of this state, there is no doubt, on principle or authority, tbat tbe dissenting opinion in *Noonan v. Bradley,*9 Wall., 394, states tbe correct rule of pleading. And being waived as matter of abatement, it cannot be raised by way of bar. *Moir v. Dodson,*14 Wis., 279; *Johnson v. Wilson,*1 Pin., 65. See Story’s Confl., § 465.

And a mere disability to sue, not going to tbe right of action, may be cured here *pendente lite. Sabine v.*Fisher, 37 Wis., 376. Indeed, if tbe disability bad not been removed in this 'case, and it bad gone to judgment on tbe merits for tbe respondents, it would be a question whether, under sec. 40, ch. 125, R. S., we should be at liberty to reverse tbe judgment for an erroneous ruling of this point by tbe court below against tbe appellant on tbe demurrer. *Hafern v.*Davis, 10 Wis., 501; *Wheeler v. Smith,*18 id., 651; *Bonnell v. Gray, 36 id.,*574.

Tbe proceeding in tbe probate court was very informal, and tbe paper filed by tbe appellant by way of plea does not raise tbe question of the respondent’s disability. Tbe question was first raised by tbe demurrer to tbe formal complaint filed under tbe order of tbe circuit court. We are inclined to think tbat it was then in time *(Tarbox v. Supervisors,*34 Wis., 558), if well taken; but tbe difficulty was removed by tbe intermediate filing of tbe letters testamentary of tbe respondents.

So far we have assumed tbat tbe respondents’ letters issued from tbe proper court having jurisdiction at tbe domicile of their testatrix. But tbe residence of tbe testatrix at tbe time of her death is not averred in tbe complaint. This is obviously a formal, but appears to us to be a fatal, objection to tbe complaint. *Non constat*tbat tbe testatrix was not domi-*419cilecl in this state wben sbe died-, and tbat tbe probate jurisdiction of ber estate was not bere. Of conrse tbe proper jurisdiction for tbe probate of ber will, in chief, was tbat of ber domicile at death. Probate of her will elsewhere would be ancillary. Tbe statute is probably intended to relate only to letters testamentary and letters of administration issued in tbe jurisdiction of tbe domicile at death. It obviously has no application to cases where tbe decedent was domiciled bere at tbe time of death, and jurisdiction to administer tbe estate was in one of our own courts.

On tbat ground only we sustain tbe demurrer. But the court below should allow tbe respondents to amend their complaint in this particular.

*By the Gowrt.*— Tbe order of tbe court below is reversed, and tbe cause remanded for further proceedings in accordance with this opinion.