81 N.W. 37 | N.D. | 1899
The facts upon which the questions of law here involved rest are as follows: On November 24, 1897, Matthias Dobler died intestate in McIntosh county, in this state. That he left surviving him, and as his only heirs at law, two sons,— Gottlieb Dobler, aged 14 years, and David Dobler, aged 10 years,— the respondents herein. That on December 18, 1897, the petition of Jakob Dobler was presented to the county judge of said county, which petition set forth the death of said Matthais Dobler, and named the respondents as his children, and stated that petitioner was a brother of deceased, and-that'deceased left certain specified personal property and certain real estate, and asking the appointment of Gottlieb Strobel as administrator of said estate. Upon the same day the bond of Gottlieb Strobel as such administrator was filed and approved, and letters of administration were issued to him by the said county judge, and his oath of office filed, and appraisers were appointed and filed their oaths of office. Three days later, to-wit: on December 21, 1897, an inventory and appraisement of the personal property was filed, and on the following day the administrator filed an application for leave to sell the personal property. The record is then silent until November 9, 1898, when A. W. Clyde filed in said County Court an application to be ap
The questions for decision upon these facts are simple: Was the action of the County Court in appointing the administrator regular or irregular, or absolutely void? And, in taking possession of the estate, did the appellant act as an administrator de jure, or as administrator de facto, or as a bald trespasser? The learned District Court appears to have entertained but little sympathy for the position of the administrator in this case. We adopt the following language found in the opinion of that court: “The respondent was appointed administrator of this estate. He was duly commissioned by the court to take into his possession, all and singular, the property thereunto belonging. This he did, and did it under the mandate of the County Court.. On the face of the record, it appears that most of the property was exempt to the two minor heirs. The petition of the special guardian, asking for an accounting, alleges under oath that the property of the estate has been willfully and unlawfully diverted from the purpose to which the law assigns it; that it has been disposed of without authority of law, and, unless protected by the court, the minor heirs will be defrauded of their just rights. If the position taken by the County Court is correct, there has been no administrator, no bond, and no case in the County Court; and even though all the property belonging ultimately to the minor heirs has been seized and disposed of, and this under the order of the County Court, these same heirs are without remedy, except eventually in a personal action against the respondent, who, for aught that appears, is insolvent. To assume that such is the law is, in my opinion, a reproach upon the administration of justice. Helpless children cannot be juggled out of their rights by any such legal legerdemain. The County Court seems to have confounded jurisdiction of the case; that is, of the property of the estate, the res, and jurisdiction of the persons-interested. Section 6183, Rev. Codes, provides that the County Court obtains jurisdiction of the case by the existence of certain facts, and the filing the petition setting forth such facts, and then provides how jurisdiction of the interested persons may be obtained. The distinction between jurisdiction of the subject-matter and jurisdiction of the person is as clearly drawn in Probate Court as in any other. The original petition, while confessedly not artistically drawn, was clearly sufficient to give the county judge jurisdiction of the case. This being so, the proceedings in reference to appointment of an administrator, the property of the estate, etc., were not null and void. Doubtless, upon application of the heirs, the respondent would have been restrained from acting further, and removed, because of the irregularity of his appointment; but, until such proceedings were had, respondent would continue to be in
The order of the District Court is in all things affirmed.