Matter of Estate of Scott , 1983 Wyo. LEXIS 275 ( 1983 )

RAPER, Justice,

concurring in part and dissenting in part.

I concur in the $93,086.13 computation.

I have heretofore dissented from the decision of this court by which it creates a probate court separate from the district court and directs that a separate action be filed in the district court to recover money from the executor as the only way to enforce collection of a debt arising prior to the death of the decedent. See my concurring and dissenting opinion in In Re Estate of Scott, Wyo., 642 P.2d 1287 (1982). I have also strongly objected to the concept of a separate probate court in Matter of Estate of Harrington, Wyo., 648 P.2d 556 (1982). I continue to dissent.

To my reasons heretofore voiced, I add constitutional support. The Wyoming Constitution has, by two sections, abolished the probate court and transferred all of its functions to the district court:

Section 10, Art. 5:

“The district court shall have original jurisdiction of all causes both at law and in equity and in all criminal cases, of all matters of probate and insolvency and of such special cases and proceedings as are not otherwise provided for. The district court shall also have original jurisdiction in all cases and of all proceedings in which jurisdiction shall not have been by law vested exclusively in some other court; and said court shall have the power of naturalization and to issue papers therefor. They shall have such appellate jurisdiction in cases arising in justices’ and other inferior courts in their respective counties as may be prescribed by law. Said courts and their judges shall have power to issue writs of mandamus, quo warranto, review, certiorari, prohibition, injunction and writs of habeas corpus, on petition by or on behalf of any person in actual custody in their respective districts.”

Section 17, Art. 21:

“Whenever this constitution shall go into effect, records and papers and proceedings of the probate court in each county, and all causes and matters of administration and other matters pending therein, shall pass into the jurisdiction and possession of the district court of the same county, and the said district court shall proceed to final decree or judgment order or other determination in the said several matters and causes, as the said probate court might have done if this constitution had not been adopted.”

The majority is living in the past, ninety-three years behind the times. There is no probate court. The parties to this proceeding are already in the district court, which should proceed to dispose of all claims without the folderol of a useless separate action. As Justice Black once said in a different setting, “[wjhen precedent and precedent alone is all the argument that can be made to support a court-fashioned rule, it is time for the rule’s creator to destroy it.” Francis v. Southern Pacific Co., 333 U.S. 445, 471, 68 S.Ct. 611, 623, 92 L.Ed. 798 (1948) (dissenting opinion). This is the way I view the majority’s citing of Gaunt v. Kansas University Endowment Ass’n of Lawrence, Kansas, Wyo., 379 P.2d 825 (1963); In Re Stringer’s Estate, 80 Wyo. 426, 345 P.2d 786 (1959); and Church v. Quiner, 31 Wyo. 222, 224 P. 1073 (1924).