144 N.W. 1082 | N.D. | 1914
(after stating the facts as above). The first point made by the respondent is that the appeal should be dismissed on the ground that the order is not an appealable one, and that the appellants have failed to demand a trial de novo, or to specify certain questions of fact
We are fully satisfied that the order appealed from was a final order affecting a substantial right made in a special proceeding, and was therefore appealable under § 1225, Rev. Codes 1905. Subdivision 2 of § 7225, Rev. Codes 1905, declares to be appealable a final order affecting a substantial right in a special proceeding. Remedies in the courts of justice are by the Code of North Dakota divided into actions and special proceedings. See Rev. Codes 1905, § 6741. “An action is an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.” Rev. Codes 1905, § 6742. “Every other remedy is a special proceeding.” Rev. Codes 1905, § 6743. It is quite clear to us that the proceeding at bar is not an action under the definition of § 6742, and that therefore it must, under § 6743, be classified as a special proceeding. The proceeding is not "an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.” An ordinary proceeding, as the term is used in the Code, is such a proceeding as was known to the common law, and was formerly conducted in accordance with the proceedings of the common-law courts. Under the modern Codes it seems that it must generally be such a proceeding as is started by the issuance of a summons and results in a judgment which can be enforced by an execution. Hallahan v. Herbert, 57 N. Y. 409; Roe v. Boyle, 81 N. Y. 305; Hyatt v. Seeley, 11 N. Y. 52; Belknap v. Waters, 11 N. Y. 477; Re Cooper, 22 N. Y. 67; Re Rafferty, 14 App. Div. 55, 43 N. Y.
Being a final order in a special proceeding, no statement of the case was required. In such cases the statute (Rev. Codes 1905, § 7206) provides that the clerk of the district court shall transmit to the supreme court the order appealed from and the original papers used by each party on the application for such order. These papers, the statutes provide, must be certified by the clerk of the district court, and no other certification or attestation is necessary. In such a case, and where no oral evidence has been taken before the district court, and the order made by the district court is based entirely on the record of the county court and the stipulation of counsel, no statement of the case is necessary. Oliver v. Wilson, 8 N. D. 590, 593, 73 Am. St. Rep. 784, 80 N. W. 757; State ex rel. Minehan v. Meyers, 19 N. D. 805,
Not only then is the order appealable, but we are at liberty to'examine the depositions which are to be found in the record in the case. This is important, as in them we find proof of what we believe to be important, if not necessary, facts, namely, that the decedent was a resident of the state of Iowa, and that there was in Iowa but $200 worth of personal property and proved debts of many thousands of dollars.
Respondent next contends that appellants can have no relief for the reason that their claims were presented to the administrator of the decedent’s estate in North Dakota, that there is no record of their approval by him, and that no suit was brought upon them within the period prescribed by § 8105, Rev. Codes 1905. We do not, however, consider these facts to be pertinent. An administrator’s act in passing upon a claim is not res jvdicaLa,. In allowing or rejecting any claim he acts merely as an auditor. His allowance or rejection simply means that he is or is not satisfied as to the justice of the claim, but it is in no sense a judicial determination, as he is not vested with judicial functions respecting it. Chambers v. Chambers, 38 Or. 131, 62 Pac. 1013. It was not necessary in this case that the claims should have been proved or adjudicated in North Dakota. They were approved by the court of the principal administration, in Iowa. It was optional with the petitioners and appellants to file their claims either in Iowa or in North Dakota. The heirs and other persons interested in the estate had the right to defend in Iowa as well as in North Dakota.
So, too, the statute of limitations or of nonclaim is not here involved. This is not an attempt to prove claims in North Dakota, but to induce the North Dakota court to sell property and to transmit the funds derived therefrom for the payment of claims properly proved and allowed in another state. Section 5187 of the Rev. Codes of 1905 provides that “when any person having title to any estate, not otherwise limited by marriage contract, dies without disposing of the
It seems to us quite clear from the foregoing sections of the Code, and especially §§ 5181, 8225, 8226, and 8096, that the legislature fully contemplated and authorized the sale of real estate where such is necessary to pay debts duly proved in a foreign jurisdiction. Our statutes, in short, seem to have adopted the policy which would be chosen by any honest man, and to look upon the property of a decedent as a trust fund to.be devoted to the payment of his debts wherever they exist. It is true that every reasonable protection is cast around the local creditor, but in that there is no suggestion of an intent that foreign creditors may be defrauded. Such is in accord with a sound public policy and a common honesty. “We cannot think,” says Chief Justice Parker-in the case of Dawes v. Head, 3 Pick. 128, “that in any civilized country advantage ought to be taken of the accidental circumstance of property being found within its territory which may be reduced to possession by the aid of its courts and laws to sequester the whole for the use of its own subjects or citizens, where it shall be known that all the estates and effects of the deceased are insufficient to pay his just debts. Such a doctrine would be derogatory to the character of any government.” An examination of the case of Re Gable, 79 Iowa, 178, 9 L.R.A. 218, 44 N. W. 352, discloses the fact that under similar circumstances, and if the creditors had been in North Dakota and the real estate in Iowa, the Iowa court would have decreed a sale of the real estate and the transmission of the funds to North Dakota. We can hardly believe that the legislature of North Dakota intended that it, its courts, and its citizens should be less honest than those of the state of Iowa. “There is an obligation,” says the supreme court of Iowa in the case of Ee Gable, supra, “wherever the laws of comity rest, which impels courts to enforce them with an authority not to be disregarded, though it be not prescribed by statute or by the common law. That obligation exists when justice demands authority to be exercised to the end that right may prevail; that property and property rights, domestic rights, and the liberty of the citizens, may be protected and enforced. A court of justice, which is established
We also find no merit in his contention that §§ 8225 and 8226, which impress the estate of a decedent with a trust in favor of creditors, and which provide for the transmission of. the residue of the estate to the executor or administrator in the state or county of the decedent’s domi-cil, relate only to cases in which the decedent has left a will. It will be noticed, indeed, that the word “administrator,” as well as “executor,” is used in §§ 8225-8227 and 8228. An administrator “is a person lawfully appointed to manage and settle the estate of a deceased person who has left no executor.” Smith v. Gentry, 16 Ga. 31, 32; 1 Words & Phrases, p. 198. A distinction is made in law between an executor and an administrator. See Webster’s Dictionary. There is nothing in the sections before us which give any reason for or any intimation of any desire on the part of the legislature that their
Nor do we believe that there is any merit in tbe argument that § 8134, Rev. Codes 1905, and wbicb provides that any local creditor may make an application for tbe sale of real estate if tbe administrator neglects so to do, covers local creditors merely, or creditors who have proved their claims in North Dakota, and that there is no machinery provided for in cases such as that before us. The legislative intention that the estate shall be impressed with a trust appears to us to be clear. It also appears to us that it was the intention that the rights of foreign creditors who had proved their claims in another jurisdiction should be based rather upon comity than upon the concession of a natural right, and that a wise discretion should be used in relation to the matter. We believe that under such circumstances the omission to provide for the machinery is in no way important, the ordinary machinery of the law being deemed adequate for the purpose.
In this connection it is well to take up the further claim of respondent that upon the death of the deceased the real' estate vested in the heirs, and could not be subjected to the payment of debts such as those before us, or to use the words of the petition, that “our statutes, being a rule of property, vested the title in the heirs freed from the creditors’ claims after the limitations.” Whether this be true generally, it is not for us to determine. It is sufficient for us to say that §§ 3741 and 3742 of the Code have already been construed by this court, and-then in the case of Friese v. Friese, 12 N. D. 82, 85, 86, 95 N. W. 446, we find it stated that “property not disposed of by will passes to the heirs, . . . subject to the control of the county court, and to the administrator appointed by the court for the purpose of administration. Rev. Codes 1899, § 3741. Such property is to be distributed subject to the payment of the debts of the intestate. Id. § 3742. Under these sections, the administrator or executor has the exclusive right to the personal property for purposes of administration. Jahns v. Nolting, 29 Cal. 508. ‘The whole matter of dealing with the estates of deceased persons is one of statutory regulation, and the policy and intent of our statute very clearly contemplate that property of decedents left un-disposed of at death . . . shall, for the purposes of ascertaining
It is next urged that to lay down the rule announced in this opinion would be highly dangei'ous, as it would permit the appointment of an administrator in a state in which the deceased had little or no property, and that “fake” claims of all kinds and descriptions might be presented without any notice or chance to defend being given to the local creditors. We do not, however, anticipate any such danger. In the ease at bar, the claims of petitioners were presented in the domiciliary court, and where they would naturally be expected to be presented. There can come no harm to the local creditors in this case for the simple reason that there are no local creditors, and the controversy is merely between the heirs and the Iowa creditors. The heirs certainly had an opportunity to defend, and a knowledge of, the proceedings in Iowa. So, too, we do not hold that in every case the local and ancillary administration may be required to transmit all of the funds, or to sell and transmit the proceeds of the real estate, to the domiciliary state. If there are local creditors who have had no legal notice of the proceeding's in the domiciliary state, we have no doubt that the court may protect their interests, and that in the same way it may protect such creditors against fraud. It is a question of comity and of sound judicial discretion. Comity and sound judicial discretion would never require the transmission of funds or assets, or the sale of
We are cognizant of the fact that at common law the real estate of a decedent could not be subjected to the payment of debts. We are, however, dealing with statutes, and not with the common law. Nor have we any fault to find with counsel’s definition of the word “comity,” and that comity is “a willingness to grant a privilege, not as a matter of right, but out of deference and good will.” We, in fact, hold that petitioners have no rights, but are merely entitled to the protection which comity should give, and that our legislature merely recognized such comity. We too have examined carefully the cases of Re Gable, 79 Iowa, 178, 9 L.R.A. 218, 44 N. W. 352; Hadley v. Gregory, 57 Iowa, 157, 10 N. W. 319; McCrary v. Tasker, 41 Iowa, 260; Conger v. Cook, 56 Iowa, 117, 8 N. W. 782, which are cited by counsel for respondent in support of the proposition that the Iowa courts under similar circumstances would not grant similar privileges. We, however, construe them otherwise. We have also read 18 Cyc. 1233, 1233-d, 1234-c; and Durston v. Pollock, 91 Iowa, 668, 60 N. W. 221; but with the same result. In 18 Cyc. page 1235, indeed, and after the statements referred to by counsel for the respondent, we find the following: “As a general rule assets remaining in the hands of an ancillary representative after paying the claims of local creditors will be transferred to the place of the domicil for distribution. This rule, however, is not absolute or inflexible, but on the contrary the transfer will or will not be made as the court may deem proper in the exercise of a sound judicial discretion according to the circumstances of the case. In the absence of special circumstances making a local distribution proper, the general rule should prevail, since the distribution, wherever made, must be according to the law of the decedent’s domicil, and comity requires that it should be accorded to that jurisdiction; but the court may, even in cases where a transmission of the residue is proper, refuse to so order until the domiciliary representative has given a sufficient bond to secure its proper administration. While there is no question as to the author
We have also examined the cases of Smith v. Union Bank, 5 Pet. 518, 8 L. ed. 212; Vaughan v. Northrup, 15 Pet. 1, 10 L. ed. 639; Aspden v. Nixon, 4 How. 467, 11 L. ed. 1059; Stacy v. Thrasher, 6 How. 44, 12 L. ed. 337; McLean v. Meek, 18 How. 16, 15 L. ed. 277; and Security Trust Co. v. Black River Nat. Bank, 187 U. S. 211, 47 L. ed. 147, 23 Sup. Ct. Rep. 52, which are cited by counsel for respondent. We believe, however, that the reasoning and conclusions before pur--sued and arrived at will show the same to be inapplicable to the case before us. We do not, indeed, find that the decisions mentioned, when carefully examined in connection both with the facts therein disclosed and the law pronounced, are in any way antagonistic to the conclusions herein arrived at.
Finally, counsel for respondent contends that §§ 8286, 8287, and 8288, Rev. Codes 1905, and which, in our opinion, make a trust estate of the property of a deceased person for the benefit of his creditors, only apply where the deceased died insolvent, and that a sale of the real estate can only be ordered under such statutes where there is proof that the entire property of the decedent is insufficient to pay his debts. He asserts that insolvency is not in this case; that it is not set forth as a ground for relief in the petition; and that there is no testimony regarding it in either court. We cannot, however, so hold. The petition alleges that “said Eulalie Lillie owned no real property in the state of Iowa, and the personal property of which she died seised did not exceed in value the sum. of $200.” It further alleges that claims in excess of $14,150 have been proven and allowed in said state. The answer admits “that the estate of decedent in the state of Iowa does not exceed in value the siim of $200.” The record shows real estate in North Dakota of an appraised value of $14,600, with outstanding
It is also claimed that the liability under the notes to the petitioners Karl W. Kendall and First National Bank of Marion, Iowa, is a joint liability merely as an accommodation maker, and that there is no showing as to the resources of the other makers. We do not, however, deem this fact to be of any importance here. Even if we can, and should, go behind the findings of the Iowa court in this case, which allowed these claims against the estate of the deceased, we can see no reason for criticizing or repudiating that allowance. The mere fact that the deceased signed the notes in question as an accommodation maker, and without consideration, if such be the case, did not release her, and does not now release her estate, from a primary liability to pay them. She signed the notes on their face along with the other makers. The contract as expressed by the terms of the notes is a direct and absolute promise to pay them in full. By so signing the notes she made herself primarily liable, and the payee is not required to first exhaust his remedies against the other parties. “The maker upon the face of the paper, with whatever motive or purpose he may sign it,” says the supreme court of California in Auld v. Magruder, 10 Cal. 282, “is bound by the contract which he signs, according to the legal effect and meaning of the words. He cannot vary that meaning by parol. The words import an unconditional promise to pay the payee so much money at a certain time. The law affixes to this unequivocal language its obvious signification. The payor is not permitted to contradict the words by showing that when he promised to pay absolutely, he meant to bind himself to pay conditionally, or on some contingency, or if another did not, or if demand was made and notice given. This contract being his own, and precise in its terms, he must fulfil it according to those terms.” This has been the holding of this court. See Northern State Bank v. Ballamy, 19 N. D. 509, 31 L.R.A.(N.S.) 149, 125 N. W. 890. See also § 6495, Rev. Codes. 1905; Inkster v. First Nat.
The order of the District Court is reversed, and the cause is remanded for further proceedings according to law and the conclusions reached in this opinion.