When the court was exercising its probate jurisdiction, that jurisdiction was limited and special; it could consider only those matters relating to the marshaling, distribution and settlement of decedents' estates. If the court attempted to resolve issues which were not necessary to the exercise of its probate jurisdiction, or acted beyond the powers conferred by statutes, such determinations were not afforded any binding effect and were subject to collateral attack. In re Scott's Estate, 642 P.2d 1287 (Wyo. 1982), appeal after remand 657 P.2d 361 (1983); First Wyoming Bank, N.A. Cheyenne v. First National Bank and Trust Company of Wyoming, 628 P.2d 1355 (Wyo. 1981); Matter of Frederick's Estate, supra; Matter of Stringer's Estate, 80 Wyo. 389, 343 P.2d 508 (1959), reh. denied 80 Wyo. 426, 345 P.2d 786 (1959); Denver Joint Stock Land Bank of Denver v. Preston, 52 Wyo. 132, 70 P.2d 584 (1937); Poston v. Delfelder, 39 Wyo. 163, 270 P. 1068 (1928); Church v. Quiner, 31 Wyo. 222, 224 P. 1073 (1924). We have noted, specifically, that a probate court cannot determine title to trust property when a third party claims title against the representative of the estate.
Thus in Poston v. Delfelder, 39 Wyo. 163, 175, 270 P. 1068, 1071 (1928) it was said that in Church "we said that acts of the probate court without jurisdiction of the subject-matter have no binding effect `even on those who invoked its authority.'" In Denver Joint Stock Land Bank of Denver v. Preston, 52 Wyo. 132, 140, 70 P.2d 584, 587 (1937) it is stated, citing Church, that "[w]hile the judge of the district court is also judge of the probate court, nevertheless there is a distinction between those courts." In In re Stringer's Estate, 80 Wyo. 389, 343 P.2d 508, on application for rehearing, 80 Wyo. 426, 433, 345 P.2d 786, 789 (1959), with specific reference to § 2-3, W.S. 1957 (the only statute cited by the majority on the question of jurisdiction), it was said:
In State ex rel. State Board of Charities Reform v. Bower, Wyo., 362 P.2d 814, 820, rehearing denied 363 P.2d 791, we had occasion to refer to the civil arm and the probate arm of the district court, saying: "These two courts are not the same, as they function in different capacities and each possesses different powers within its separate jurisdiction." Rulings to the same effect have been made by this court in these cases: Slover v. Harris, 77 Wyo. 295, 314 P.2d 953, 957; Hartt v. Brimmer, 74 Wyo. 356, 287 P.2d 645, 649; Merrill v. District Court of Fifth Judicial Dist., supra, at 272 P.2d 598; Denver Joint Stock Land Bank of Denver v. Preston, 52 Wyo. 132, 70 P.2d 584, 587; and Church v. Quiner, 31 Wyo. 222, 224 P. 1073, 1074. Looking specifically at some of the expressions contained in these cases, we point out that in the Slover case a decree admitting a will to probate was said not to be subject to collateral attack, but to stand as final if not revoked by a "direct" proceeding or reversed on appeal.
When the court performs one of its functions, its capacity, power and jurisdiction are entirely separate and distinct from those it possesses and exercises when acting in its other capacities. In Denver Joint Stock Land Bank of Denver v. Preston, 52 Wyo. 132, 140, 70 P.2d 584, 587, a mortgagee filed claim in the probate court for the deceased's debt to the mortgagee and upon rejection of the claim by the administratrix the mortgagee proceeded to foreclose by publication, then sued in a civil action to recover a deficiency. It was contended that when the mortgagee chose to present its claim to the administratrix in the probate court, the mortgagee was compelled to remain in that court.
We have held that a party holding a mortgage which contains a power of sale may exercise that power without presenting his claim to the court. Denver Joint Stock Land Bank vs. Preston, 52 Wyo. 132, 70 P.2d 584, Delfelder vs. Teton Land Investment Co., 46 Wyo. 142, 24 P.2d 702. In the latter case we also held that an attorney fee may be allowed under a mortgage in connection with which a power of sale is exercised if the mortgage provides for such fee.