November 14, 1903, E. M. Prouty discounted to the relator a note for $3,000, signed by George W. Downing, payable to the order of E. M. Prouty & Co., and at the same time assigned to relator a chattel mortgage executed by Downing to E. M. Prouty & Co. to secure payment of the note, purporting to mortgage property described as follows: “The following described property now in my possession, owned by me, and free from incumbrance, to wit, one hundred fifty (150) head of mixed cattle, branded p. C on the left side, arid being in Williams county, North Dakota, near Buford.” At the time of
Mr. Prouty died on March 10, 1906,.and his son, Emery M. Prouty, was duly appointed administrator by the probate court of Ramsey county. The relator then made proof of his claim against the estate, based upon Mr. Prouty’s guarantee of the promissory note. The claim was allowed. Certain cattle in Montana belonging to Mr.' Prouty having been sold, and the proceeds having been turned over to the administrator, the relator petitioned the probate court for an order directing the administrator to pay to it the amount of its claim out of that fund, upon the theory that it had a preferred lien thereon by virtue of the mortgage. The probate court declined to hear the matter upon the ground that it had no jurisdiction, and a writ of certiorari was then sued out of the district court to review that question. The district court also determined that the probate court had no jurisdiction, and the matter was brought to this court upon appeal.
The petition, after setting forth the execution of the note and mortgage, as above stated, alleges, upon information and belief, that the said George W. Downing did not own the cattle described in the mortgage, but that, on the contrary, they were the property of E. 'M. Prouty; that Prouty procured the original note and mortgage, and renewals thereof, to be made out in the name of Downing for the purpose of discounting the same at the bank; that the relator was ignorant of the true situation, accepted the notes and mortgages for what they purported to be, and that the mortgage was duly recorded; that Prouty owned a large number of cattle in excess of the one hundred fifty head mentioned in the mortgage, and that either before or after the execution of the last-mentioned mortgage, viz., November 14, 1905, more than one hundred fifty cattle bearing the brand p_ C were removed from North Dakota to Montana, where they were
The relator seeks to establish a lien upon the fund, and the right is based upon its alleged equitable mortgage upon the cattle which were sold. In order to establish such right to the fund, the relator must prove what is alleged, viz., that the cattle described in the mortgage belonged to Prouty himself, and that relator had the right to appropriate the one hundred fifty head located in Montana after the death of Mr. Prouty, and, further, that, although possession was not obtained after electing to take them, nevertheless a lien attached to the fund in the hands of the administrator.
Conceding that in a proper action the Montana cattle, or the proceeds thereof, might have been appropriated to meet the debt, it is apparent that no such lien could be proven or enforced, except with the aid of a court of equity, and in our opinion the probate court possesses no such powers. The principles which determine the jurisdiction of that court can only be ascertained by a careful examination of the authorities. In Farnham v. Thompson, 34 Minn. 330, 26 N. W. 9, 57 Am. 59 (followed in Dobberstein v. Murphy, 44 Minn. 526, 47 N. W. 171), it was held that the probate court might determine to whom the estate passed upon the death of decedent, but claims made by third parties against the land passing to an heir or devisee, based on the alleged acts of such heir or devisee, and not on the law of descent, were not involved in the administration and must be determined by some other tribunal than the probate court. In State v. Probate Court of Sibley County, 33 Minn. 94, 22 N. W. 10, it was held that after the land had been sold under an order of the probate court, the sale confirmed, the deed executed, and the administrator discharged,
Another case which illustrates the limit of the jurisdiction of the probate court is Mousseau v. Mousseau, 40 Minn. 236, 41 N. W. 977, where it was held that the court had jurisdiction to direct the administrator or executor to make a conveyance, when it appeared that there was no reason why it should not be made; but it was expressly, stated that the court had no jurisdiction to determine the merits of a controversy between the vendor and the vendee, where there was any dispute as to the rights of the parties under the contract of purchase. That decision rests upon the theory that under the constitution the legislature might utilize the machinery of the probate court for the simple purpose of executing a conveyance as an incident to the administration and distribution of the estate in cases where there was no controversy as to the facts. Comstock v. Matthews, 55 Minn. 111, 56 N. W. 583, illustrates the restricted character of the court’s jurisdiction as limited by the statute, and it was held that the court had no jurisdiction to determine claims arising in tort, but that .the claimant must bring his action against the personal representatives in the dis
In Starkey v. Sweeney, 71 Minn. 241, 73 N. W. 859, the plaintiff in an action commenced in the district court alleged that the heirs fraudulently claimed that advancements had been made to the defendant, one of the heirs, from his father in his lifetime, and had procured a settlement of the estate upon that fraudulent basis, and were proceeding to have the probate court partition and distribute the estate to the other heirs. The court decided that the district court had no jurisdiction to restrain the heirs from proceeding with the final settlement of the estate and to call upon the administrator to account for the defendant’s share. Boltz v. Schutz, 61 Minn. 444, 64 N. W. 48, is in line with the trend of the decisions already cited, and, although some general language appears in the opinion as to the jurisdiction of the probate court, the point decided was that the court had exclusive jurisdiction, and if the plaintiff had any claims or judgments against the intestate the same could only be enforced by causing the real estate to be sold.
Relator lays much stress upon the decision of State v. Ueland, 30 Minn. 277, 15 N. W. 245. The court held that the jurisdiction of the probate court included the power to construe a will whenever such construction was involved in the settlement or distribution of the estate of the testator, and that if, under the provisions of a will, a widow had the right of election, but was unable to make it by reason of her insanity, then the probate court had the power to make the election for her. In the course of the opinion Justice Mitchell called atten
It must be accepted as settled by the cases cited that the constitution did not confer exclusive original jurisdiction upon the probate court .to try and determine all classes of claims; that it was intended that the lawmaking power should regulate the matter by appropriate legislation. The subject is covered in the Revised Laws of 1905 by sections 3727 — 3749. No provision is made for the adjustment of equitable liens. “No action at law shall lie against an executor or administrator for the recovery of money: * * * Provided, that nothing in this section shall be construed as preventing an action to enforce a lien •existing at the date of decedent’s death. * * * ” Section 3733. The “action” referred to in this section is the proper action to be brought in a court of general jurisdiction. Conceding, without deciding, that the legislature, under the constitution, might have conferred such power upon the probate court, here is an express declaration that it has not been done. Section 3749 has no application to ■equitable or disputed liens. The proper meaning of that section is that where there is no dispute, and nothing to litigate, the probate court may, as an incident to the distribution of the estate, direct the executor ■or administrator to pay off a mortgage, pledge, or security in favor ■of a claimant. That section is analogous to the statute considered in Mousseau v. Mousseau, supra.
Affirmed.