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the month of May, 1911, and after the ap- of Marion, Iowa, for $14,510.93 and $1,650, proval and allowance of the claims of the respectively, were presented and filed with petitioners Karl W. Kendall and First Na- George L. Lillie, administrator in the county tional Bank of Marion, Iowa, in the probate of Bottineau, North Dakota, and the judge proceedings brought in the district court of of said court thereupon indorsed thereon Linn county, Iowa (which court had pro- the date of their filing. No other or further bate jurisdiction), a petition was filed in action was ever taken by the said adminthe county court in and for Bottineau istrator of George L. Lillie or by the said county, North Dakota, asking that George county court in reference thereto.

On or Lillie be appointed administrator of the about the 24th day of February, 1911, an estate of Eulalie Lillie situated in the state order was made in the district court of Linn of North Dakota, and such proceedings were county, Iowa, on an application by the aphad thereon that George L. Lillie was duly pellants and petitioners, Karl W. Kendall appointed and known as the administrator and First National Bank of Marion, Iowa, of such estate. On the 7th day of June, which prayed that the administrators of 1910, and on the 20th day of June, re- the decedent's estate in Iowa might be dispectively, the said claims of the petitioners rected to apply to the county court of Botharl W. Kendall and First National Bank' tineau county in North Dakota for an order: was held to be error to grant a license to necticut, we think that these expenses must sell real estate in Massachusetts to pay the be regarded as incurred by the ancillary Massachusetts creditors and thus to disin- administrator in the due course of his ad. herit the heirs in Massachusetts, it not ministration of the estate in this commonhaving been shown that the creditors used wealth, and that as such they should be paid diligence to collect their debts in Louisiana out of the property available here for the or that they met with any legal impediment payment of demands due to creditors rethere; and this was particularly so when siding in this state." the petitioner asking leave to sell the real estate was himself executor of the estate.

Must local debts be shown? Livermore v. Haven, 23 Pick. 116. It may be noted that an action was after- There seems to be some difference of opinwards begun by the creditors against the ion in the courts as to whether claims must administrator upon his Massachusetts bond, be made in the local jurisdiction. but the court held that he was not liable In Hobson v. Payne, 45 Ill. 158, upon a on this bond for the personal assets in petition of the local administratrix ap. Louisiana. Fay y. Haven, 3 Met. 109. pointed in Illinois where there was real

property, the Illinois court gave an order What will be considered as debts.

for the sale of such real property for the

payment of debts, it appearing that no An allowance provided by the laws of debts had been proved locally, but that the domicil to be made to the widow and debts had been claimed against the estate minor children of a deceased person out of in Kentucky, the place of domiciliary adhis estate for their maintenance and sup-ministration. On appeal the court reversed port for the period of twelve months after the decree, on the ground that it was made his death, and which has preference over in a case not contemplated by the statute everything except funeral expenses and ex- and for the purpose of paying supposed penses of administration, cannot be re- debts with which the local administratrix garded as an indebtedness that may prop- had no concern. The court observed that erly be enforced, in the event of a deficiency the creditors, if such there were, might have of personal assets, against the realty of the caused letters of administration to be taken decedent situated in another state or ju- out in Illinois and proved their claims, and - risdiction, where there is no law in such the administratrix might then have obother state or jurisdiction that provides tained an order for the sale of land. for any such allowance. Hansel v. Chap- After the death of the executor of an man, 2 App. D. C. 361.

Ohio will, and the appointment of separate In Cowden v. Jacobson, 165 Mass. 240, administrators with the will annexed in 43 N. E. 98, infra, “Miscellaneous," the Ohio and Illinois respectively, a claim which court allowed sums paid by the Massachu. had been brought to judgment against the setts administrator after the settlement of Ohio executor to be paid “in due course of the account in Connecticut, being under- administration” will not support a sale of taker's services, and the cost of digging land in Illinois for its payment, Rosenthal the grave, the decedent's body having been v. Renick, 44 Ill. 202, where the court said: brought from Connecticut to Massachusetts “A judgment against an administrator in for interment. As to this, the court ob- one state is no evidence of indebtedness served: "No doubt, if there had been but against another administrator of the same one administrator, and he in Connecticut, decedent in another state, for the purpose these items would have been allowed in of affecting assets received by the latter his account if duly presented to and paid under his administration. The administraby him.

But though the adminis- tors are not regarded as in privity with tration here was ancillary to that in Con. each other.”


directing the administrator of the North Messrs. Engerud, Holt, & Frame for Dakota estate to institute proceedings to appellants. sell the land in North Dakota and to remit Messrs. Noble, Blood, & Adamson the proceeds of such sale to the adminis- for respondent. trators in Iowa. No claims have been proved against the estate in North Dakota, Bruce, J., delivered the opinion of the and the funds in the hands of the admin-court: istrators in Iowa are entirely inadequate The first point made by the respondent is to pay the claims of the petitioners. Ap- that the appeal should be dismissed on the pellants Karl W. Kendall and First Na- ground that the order is not an appealable tional Bank of Marion, Iowa, are both resi- one, and that the appellants have failed to dents of Marion, Linn county, Iowa. This demand a trial de novo, or to specify cerappeal is taken from the order of the dis- tain questions of fact that they desire the trict court affirming the order of the county supreme court to review, or to make any court. There is no demand for a trial de settled statement, and have failed to enter novo, nor is there any settled statement of up any judgment, or to appeal from any the case, nor any specifications of fact that judgment. It is argued that the order of the appellants desire this court to review. 'the district court was in reality one of

On the other hand, it was held in Dow foreign executrix may file an authenticated v. LILLIE, that claims need not be made in copy of her appointment in the probate the local jurisdiction.

court of any county in this state in which In Thomas v. Williams, 80 Kan. 632, 25 there is real estate of the deceased, and L.R.A. (N.S.) 1304, 103 Pac. 772, where then may be authorized, under an order land in Kansas was specifically devised by of the court, to sell the real estate for the a resident of New York whose will was ad- payment of debts of the decedent and the mitted to probate in New York, the de- charges of administration, in the manner visees conveyed the land; thereafter the and upon the terms and conditions preNew York executor applied to the Kansas scribed by the statute of this state." probate court of the county in which the No local debts seem to have been showb land was situated for an order to sell it in Comstock v. Crawford, 3 Wall. 396, 18 for the payment of debts and charges of L. ed. 34, where the statute authorized the administration, and this petition was probate court where the real estate was sitgranted over the objection of the devisees, uated to order its sale to satisfy the just and their grantee, and the decision affirmed. debts of the decedent when the personal It was held that there being no statute of property was insufficient to pay them, upon limitations applicable, the court would con- representation of this insufficiency and "the sider simply whether the delay was reason- same being made to appear" to the court. able, that the evidence of the indebtedness, It was held in that case that a sale was to wit, an order of the New York surrogate properly ordered on an application by the allowing it, while not conclusive against local administrator showing that he was also the devisees, was admissible in evidence the administrator in Illinois (the principal against them. The court pointed out that place of administration), accompanied by the Kansas statute "in express terms (Gen. a certificate of the probate judge in IlliStat. 1901, $ 2950) authorizes a foreign nois showing that the personal property had executor or administrator, where none has been exhausted in payment of debts, that been appointed in Kansas, to sell real estate there remained debts unpaid to an amount of the decedent situated in this state for named, and that the sale was necessary the payment of debts in the same manner and proper to pay such debts, of the exas though he had been appointed here. This istence and amount of which due proof had provision establishes a connection between been given. The decedent was domiciled in the foreign administration and the domestic Ilinois where administration was taken out proceedings. It makes the real estate in and the same administrator took out letthis jurisdiction, so far as necessary for the ters in Iowa county, Wisconsin, where the payment of debts, assets of the estate as decedent left personal property, and the apadministered elsewhere. It places the order plication for sale was to the probate court of the foreign court allowing claim of Grant county, Wisconsin, where the real against the administrator upon the same property was located. footing with a similar order made in this state. Neither is conclusive against the

The question of time-reasonable delays. heirs, but either is admissible in evidence against them.”

In Durston v. Pollock, 91 Iowa, 668, 60 We are not informed whether or not N. W. 221, cited in Dow v. LILLIE, the printhere were any local debts in Higgins v. cipal place of administration was Illinois, Reed, 48 Kan. 272, 29 Pac. 389, where the where the plaintiff was appointed adminisofficial headnote states that “when an exec- trator with the will annexed, and there was utrix is appointed in another state, on the real property in Iowa, which was specifically estate of a person dying out of this state, devised by the will and which was not inand no executor, executrix, or administra- ventoried in Illinois, where claims were tor thereon is appointed in this state, the barred within two years from the granting


the conclusions of law made by that court, | fecting a substantial right in a special proand was not an appealable order, and that ceeding. the appeal, if any, is one which should have Remedies in the courts of justice are, by been taken under $ 7229 of the Code of the Code of North Dakota, divided into ac1905, the action being, according to the con- tions and special proceedings. See Rev. tention, an equitable one. It is also claimed Codes 1905, § 6741. “An action is an that, even if the action is a law action, ordinary proceeding in a court of justice, there is no settled statement, no notice of by which a party prosecutes another party intention to move for a new trial, no mo- for the enforcement or protection of a right, tion for a new trial, no appeal from any the redress or prevention of a wrong or order denying a new trial, and no appeal the punishment of a public offense.” Rev. from any judgment. We are fully satisfied Codes 1905, 6742. “Every other remedy that the order appealed from was a final is a special proceeding." Rev. Codes 1905, order affecting a substantial right made in 6743. It is quite clear to us that the a special proceeding, and was therefore ap- proceeding at bar is not an action under pealable under $7225, Rev. Codes 1905. the definition of § 6742, and that therefore Subdivision 2 of § 7225, Rev. Codes 1905, it must, under § 6743, be classified as a declares to be appealable a final order af-'special proceeding. The proceeding is not of letters unless the creditors shall find | applied only to intestate estates, where the other estate of the deceased "not inventoried statutes also provided that “all wills exeor accounted for" by the executor or admin-cuted according to the laws of the state or istrator, and within such two years the will country where they were executed may be was admited to probate in Iowa. The admitted to probate in this state, ann shall court, in denying an application to sell the be effectual to pass any of the estate of Iowa land to satisfy a claim which was not the testator situated in this state; and filed in Illinois, and was not filed in Iowa

that “if the testator at his decease until after the two years' time had ex lived out of this state, the will may be pired in Illinois, said: "Within the two proved in any district in which the estate years for exhibiting claims in the probate conveyed or some part of it may be,'. court of Mercer county (Illinois] and at a and that ‘no will shall be proved after ten time when the only purpose of probating years from the death of the testator. ” the will in Ringgold county [Iowa) would In Thomas v. Williams, 80 Kan. 632, be to give effect to the devise of the land, 25 L.R.A. (N.S.) 1304, 103 Pac. 772, supra, it was so admitted to probate; and we as. "Must local debts be shown," it was held sume, as being in the line of his official that there being no local statute of limitaduty, that it was caused by the plaintiff. tions relative to the case of an application This was done in April, 1887; and assum- by the domiciliary executor, the court in ing, as we should, that he had observed his such case would consider simply whether duties under the law of his appointment in the delay was reasonable. Illinois, we must treat this land as Where devisees have made no improvecounted for by him in so far as any ac- ments and there is no inflexible statute of counting would be required in Illinois for limitation, the courts will not deny the proland situated in Iowa."

ceeding to sell land for the payment of In Hadley v. Gregory, 57 Iowa, 157, 10 debts on account of some delay, where there N. W. 319, the principal place of ad. has been no real laches. Rosenthal v. Renministration was in Indiana, where all the ick, 44 Ill. 202. claims were presented and where there had See also Dow v. LILLIE. been full administration upon the personal assets, and it was held that an application

Sales in excess of debts. ought not to be entertained to sell the real estate of the decedent in Iowa for the pay.

Where sales were made on the represenment of his debts after the expiration of the tation that the debts at the principal place time allowed for establishing claims had ex

of administration were $8,000, the heirs pired, where there were no peculiar circum- could not attack the sales because they were stances shown entitling the claimant to for more than $10,000. Comstock v. Crawequitable relief; and, there being no proof ford, 3 Wall. 396, 18 L. ed. 34. on the subject, the court would presume that the law of Indiana was the same as When the local administration is considered the law of Iowa with relation to limiting

principal. time for filing claims against the estate. In Hendrickson v. Ladd, 2 Dem. 402,

In Lawrence's Appeal, 49 Conn. 411, su- where administration with the will annexed, pra, "Question of exhaustion,” etc., where the will being already probated in Caliit was claimed that after eight years the fornia, was granted in the state of New creditor could not take out letters on a York, on the allegation that there was perforeign will in order to have the land sold sonal property there, not stating anything for the payment of debts, it was held that about creditors in New York, it was held the statute providing that “administration that such administration was principal, and upon the estate of any person shall not be not ancillary, and that therefore the adgranted after seven years from his decease,” 'ministrator might bring a proceeding to


"an ordinary proceeding in a court of jus-, N. Y. 1, 4, 28 Am. Rep. 88; Mills v. Thursby, tice, by which a party prosecutes another 2 Abb. Prac. (N. Y.) 432; Crosby's Estate, party for the enforcement or protection of 55 Cal. 574, 588; Smith v. Westerfield, 88 a right, the redress or prevention of a Cal. 374, 26 Pac. 206. Proceedings, indeed, wrong, or the punishment of a public of such as those before us have repeatedly fense."

been held to be special proceedings, and An ordinary proceeding, as the term is not actions. Scott's Estate, 15 Cal. 220; Re used in the Code, is such a proceeding as uoseph, 118 Cal. 660, 50 Pac. 768; Re Bur. was known to the common law, and was ton, 93 Cal. 459, 29 Pac. 36; Deer Lodge Co. formerly conducted in accordance with the v. Kohrs, 2 Mont. 66; Burris v. Kennedy, proceedings of the common-law courts. Un 108 Cal. 331, 41 Pac. 459; Crosby's Estate, der the modern Codes it seems that it must 55 Cal. 574; Ex parte Smith, 53 Cal. 204; generally be such a proceeding as is started Missionary Soc. v. Ely, 56 Ohio St. 405, 47 by the issuance of a summons and results N. E. 538; Seward v. Clark, 67 Ind. 289; in a judgment which can be enforced by Carpenter v. Superior Ct. 75 Cal. 596, 599, an execution. Hallahan v. Herbert, 57 N. Y. 19 Pac. 174; Re Blythe, 110 Cal. 226, 42 409; Roe v. Boyle, 31 N. Y. 305; Hyatt v. Pac. 641; Smith v. Westerfield, 88 Cal. 374, Seeley, 11 N. Y. 52; Belknap v. Waters, 11 26 Pac. 206; Pryor v. Downey, 50 Cal. 388, N. Y. 477; Re Cooper, 22 N. Y. 67; Re Raf- 19 Am. Rep. 656; Re Burton, 93 Cal. 459, ferty, 14 App. Div. 55, 43 N. Y. Supp. 760; 29 Pac. 36. So, too, it is equally clear that Cornish v. Milwaukee & L. W. R. Co. 60 the order is a final order, and affects a Wis. 476, 19 N, W. 443; Van Winkle v. substantial right. See Bolton v. Donavan, Stow, 23 Cal. 458; McNiel v. Borland, 23 9 N. D. 575, 84 N. W. 357; Ellis v. SouthCal. 144; State ex rel. Carleton v. District western Land Co. 94 Wis. 531, 69 N. W. Ct. 33 Mont. 138, 82 Pac. 789, 8 Ann. Cas. 363; Re Sullivan, 40 Wash. 202, 111 Am. 752; Wildman v. Wildman, 70 Conn. 700, St. Rep. 895, 82 Pac. 297. It is an order, 41 Atl. 1. A special proceeding, on the not a judgment, for in such cases the disother hand, is a remedy which is of statu-trict court enters no judgment. See Rev. tory origin. Roe v. Boyle, 81 N. Y. 305; Codes 1905, $$ 7986, 7989. Hyatt v. Seeley, 11 N. Y. 52; Re Ryers, 72 Being a final order in a special proceedsell the real estate in the state of New , estate was insolvent, it was held that the York for the payment of debts, which could Massachusetts creditors were only entitled not be done by the holder of ancillary let to their pro rata share. ters.

Where, at the request of administrators Where administration was granted in with will annexed in Pennsylvania, which Tennessee upon the solvent estate of a resi- was the state of the domicil of the insolvent dent who at the time of his death owned decedent, administration was granted by the in Mississippi land, but no personal prop court in Iowa, where the decedent left large erty, it was held that the creditors might real estate, which was thereupon sold, and noť bring a bill in equity in Mississippi to the debts proved in Iowa satisfied, the court subject this land to the payment of their directed that the surplus should be paid to debts for the reason that under the law the principal administrators in Pennsylof Mississippi an administrator could be, vania against the plea of those claiming as and should be, appointed; the court point- heirs or distributees of the testator. Re ing out that under the Mississippi statute, Gable (Gara v. Austin) 79 Iowa, 178, 9 personal property situated in that state is L.R.A. 218, 44 N. W. 352, referred to and distributed according to its laws, notwith quoted from in the principal case. standing the domicil of the decedent is in another state, and that the necessary effect

Miscellaneous. of this statute was to abolish ancillary administration altogether, and that the stat- In Mackin's Estate, 11 W. N. C. 207, the ute further devoted the real estate alike court observed that a widow of a New with the personal to the payment of the Jersey decedent who proved his will there, intestate's debts. Partee v. Kortrecht, 54and took out letters, and then took out anMiss. 66.

cillary letters in Pennsylvania, could not

sell and convey a good title to the Pennsyl. Distribution of proceeds.

vania real estate without authority from the

Pennsylvania orphan's court and upon enIn Davis v. Estey, 8 Pick. 475, where an tering security. intestate died in Vermont, letters were In Higgins v. Reed, 48 Kan, 272, 29 Pac. taken out upon his estate there and his ad. 389, where the application was by the domi. ministrators afterwards took out letters of ciliary executrix, it was held that the omisadministration in Massachusetts and ob- sion of the local court to require a bond, tained license to sell his real estate there if any error at all, was a mere irregularity, for the payment of debts, and there was and not jurisdictional. enough property in Massachusetts to pay An intestate resident of Connecticut, the Massachusetts creditors, but the entire where the whole blood took to the exclusion ing, no statement of the case was required. , we are at liberty to examine the deposiIn such cases the statute (Rev. Codes 1905, tions which are to be found in the record § 7206) provides that the clerk of the dis- in the case. This is important, as in them trict court shall transmit to the supreme we find proof of what we believe to be imcourt the order appealed from and the orig- portant, if not necessary, facts; namely, that inal papers used by each party on the ap- the decedent was a resident of the state of plication for such order. These papers, the Iowa, and that there was in Iowa but $200 statutes provide, must be certified by the worth of personal property, and proved debts clerk of the district court, and no other of many thousands of dollars. certification or attestation is necessary. In Respondent next contends that appelsuch a case, and where no oral evidence has lants can have no relief, for the reason been taken before the district court, and that their claims were presented to the adthe order made by the district court is based ministrator of the decedent's estate in North entirely on the record of the county court Dakota, that there is no record of their and the stipulation of counsel, no statement approval by him, and that no suit was of the case is necessary. Oliver v. Wilson, brought upon them within the period pre8 N. D. 590, 593, 73 Am. St. Rep. 784, 80 scribed by $ 8105, Rev. Codes 1905. We do N. W. 757; State ex rel. Minehan v. Meyers, not, however, consider these facts to be per19 N. D. 805, 817, 124 N. W. 701. We have, tinent. An administrator's act in passing at the request of counsel for respondent, upon a claim is not res judicata. In allowcarefully examined our holding in the case ing or rejecting any claim he acts merely of Re Peterson, 22 N. D. 480, 134 N. W. as an auditor. His allowance or rejection 751. We find nothing, however, in that simply means that he is or is not satisfied case which is antagonistic to the proposi- as to the justice of the claim, but it is in tions herein advanced. If oral evidence had no sense a judicial determination, as he is been taken in the district court, a settled not vested with judicial functions respectstatement of the case might have been neces. ing it. Chambers v. Chambers, 38 Or. 131, sary, but such was not the fact in the case 62 Pac. 1013. It was not necessary in this at bar.

case that the claims should have been proved Not only then is the order appealable, but I or adjudicated in North Dakota. They were of the half blood, died leaving real and per- | Thrasher, 6 How. 44, 12 L. ed. 337; Mcsonal property there, and also real property Lean v. Meek, 18 How. 16, 15 L. ed. 277; in Massachusetts, and leaving a brother that of other cases there cited McCrary v. resident in Massachusetts and a minor half-Tasker, 41 Iowa, 255, and Conger v. Cook, sister resident in Maine. An administrator 56 Iowa, 117, 8 N. W. 782, apparently reresident in Massachusetts was appointed in lated to sales in the jurisdiction of domicil; Connecticut and administered the estate and that Smith v. Union Bank, 5 Pet. 518, there, and the brother submitted a claim on 8 L. ed. 212, did not relate to real propa promissory note against the estate to the erty. Connecticut judge of probate who, finding Security Trust Co. v. Black River Nat. than there was real property in Masachu- Bank, 187 U. S. 211, 47 L. ed. 147, 23 Sup. setts, disallowed the claim, and the admin-ct. Rep. 52, cited in Dow v. LILLIE, deistrator's accounts in Connecticut were cided simply that a proceeding would not passed and a surplus was directed to be lie against an administrator upon a claim paid to the brother. The same adminis. which was barred by the state statute of trator qualified as administrator in Massa- limitations, the action being brought in the chusetts and sold the real estate there, and it United States court. was held that out of the sale of such It may be noted that Bacon v. Chase, 83 real estate the claim of the brother on Iowa, 521, 50 N. W. 23, which is not clearly the note should be paid, the brother's reported, rests upon estoppel; that Re receipt of the surplus from Connecticut Donelly, 19 Ont. W. Rep. 708, while poshaving been as brother and not as cred sibly within the scope this note, is not itor. The minor half-sister had received sufficiently reported; and that in Rapp v. notice of the petition to sell the real Matthias, 35 Ind. 332, the deficiencies in estate in Massachusetts, “and also of the the proceedings and the merits of the case action of the court in Connecticut in regard were so entirely against the application as to distribution,” but made no objection to to make it of no value on the subject. the proceedings until the administrator in In Hapgood v. Jennison, 2 Vt. 294, it Massachusetts presented his account for al- appears that the executor of a will proved lowance, Cowden v. Jacobson, 165 Mass. it in Massachusetts and took out letters, 240, 43 N. E. 98.

and then proved it in Vermont, and took It may be noted that the following cases our letters of administration there, and cited in Dow v. LILLIE do not seem to have made sales of land in Vermont for the pay. had to do with the sale of land for the ment of debts, but the terms of the will payment of debts: Aspden v. Nixon, 4 do not appear, or whether there was any How. 467, 11 L. ed. 1059; Vaughan v. North- power of sale in it or not. up, 15 Pet. 1, 10 L. ed. 639; Stacy v.

B. B. B.

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