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approved by the court of the principal ad- | itor who is not a citizen of this state shall ministration in Iowa. It was optional with be paid out of the assets found here until the petitioners and appellants to file their all those who are citizens have received their claims either in Iowa or in North Dakota. just proportions as provided in the preceding The heirs and other persons interested in section.” the estate had the right to defend in Iowa Section 8228 provides: “If there is any as well as in North Dakota.

residue after such payment to the citizens So, too, the statute of limitations or of of this state, it may be paid to any other nonclaim is not here involved. This is not creditors who have duly proved their debts an attempt to prove claims in North Da- here, in proportion to the amount due to kota, but to induce the North Dakota court each of them, but no one shall receive more to sell property and to transmit the funds than would be due to him if the whole derived therefrom for the payment of claims estate was divided ratably among all the properly proved and allowed in another creditors as before provided. The balance state. Section 5187 of the Revised Codes may be transmitted to the foreign executor of 1905 provides that “when any person or administrator, or if there is none, it shall having title to any estate, not otherwise after the expiration of one year from the limited by marriage contract, dies without appointment of the administrator be disdisposing of the estate by will, it is suc- tributed ratably among all creditors both ceeded to and must be distributed, unless citizens and others, who have proved their otherwise expressly provided in this Code, debts in this state.” and the Probate Code, subject to the pay. Section 8134 provides: “When a sale of ment of his debts.” In this clause there is property of the estate is necessary to pay no qualification as to where those debts the allowance of the family or the debts shall exist, or where they shall have been outstanding against a decedent, or the allowed. Section 8093 of the Code provides: debts, expenses or charges of administra“All the property of the decedent except as tion or legacies, or when such sale is for otherwise provided for the homestead and the best interests of the estate and the perpersonal property set apart for the surviving sons interested in the property to be sold, wife or husband and minor child or chil. whether it is or is not necessary to pay the dren shall be chargeable with the payment debts or family allowance, the executor or of the debts of the deceased, the expenses administrator may also sell any real estate of administration and the allowance to the as well as personal property of the estate family, and the property, personal and real, in his hands and chargeable for that purpose may be sold as the court may direct in upon the order of the county court; and an the manner hereinafter prescribed.” application for the sale of real property

Section 8096 provides: “The estate real may also embrace the sale of personal propand personal given by will to legatees or erty. To obtain an order for the sale of real devisees is liable for the debts, expenses of property the executor or administrator must administration and allowance to the family. present a verified petition to the county

court, setting forth the amount of personal Section 8225 provides: "Upon the set- property that has come into his hands as tlement of such estate and after the pay- assets, and how much thereof, if any, rement of all debts for which the same is mains undisposed of; the debts outstanding liable in this state, the residue of the per against the decedent, as far as can be assonal estate may be distributed and dis- certained or determined; the amount due posed of in manner aforesaid by the county upon the family allowance, or that will be court; or in the discretion of the court, it due after the same has been in force for may be transmitted to the executor or ad- one year; the debts, expenses and charges ministrator, if any, in the state or country of administration already approved, and an where the deceased had his domicil, to be estimate of what will or may accrue during there disposed of according to the laws the administration; the facts showing the thereof."

sale to be for the best interests of the estate, Section 8226 provides: "If such person if the application is made upon that ground; dies insolvent, his estate found in this state a general description of all the real propshall, as far as practicable, be so disposed erty, except the homestead, of which the of that all his creditors here and elsewhere decedent died seized, or in which he had may receive each an equal share in propor any interest, or in which the estate has action to their respective debts."

quired any interest, and the condition and Section 8227 provides: “To this end his value thereof; the names of the legateeg estate shall not be transmitted to the foreign and devisees, and the heirs of the decedent, executor or administrator until all the cred so far as known to the petitioner. If any itors who are citizens of this state have of the matters herein enumerated cannot be received their just proportions; and no cred-'ascertained, it must be so stated in the petition; but a failure to set forth the facts, obligation," says the supreme court of Iowa showing the sale to be necessary will not in the case of Re Gable, supra, "wherever invalidate the subsequent proceedings, if the the laws of comity rest which impel courts defect be supplied by the proofs at the hear. to enforce them with an authority not to be ing, and the general facts showing such disregarded, though it be not prescribed by necessity is stated in the decree. If it ap- statute or by the common law. That oblipears to the court from such petition that gation exists where justice demands author. it is necessary to sell the whole or some ity to be exercised to the end that right may part of such real estate, for the purposes | prevail; that property and property rights, and reasons mentioned in this section, or domestic rights, and the liberty of the citiany of them, or that such sale is for the zens may be protected and enforced. А best interests of the estate, such petition court of justice, which is established that must be filed and an order thereupon made justice may be enforced and upheld, can directing all persons interested in the es have no more binding obligation resting tate to appeal before the court at a time upon it than that which requires that it and place specified, not less than four, and shall do justice.

Under the law not more than ten, weeks from the time of upon the subject, which prevails over the making such order, to show cause why an whole Union, all the property of a decedent, order should not be granted to the executor including his lands, except a homestead and or administrator to sell so much of the real other exemptions, is subject to the payment estate of the decedent as is necessary, or for of his debts, and is assets for that purpose. the best interests of the estate."

Debts must be paid before the assets can be It seems to us quite clear from the forego- distributed to the heirs, legatees, and deing sections of the Code, and especially visees, without regard to the place of resi88 5187, 8225, 8226, and 8096, that the dence of the creditors. Justice requires legislature fully contemplated and author- that creditors should be paid when they ized the sale of real estate where such is have duly established their claims. Such necessary to pay debts duly proved in a claims may be established either in the prinforeign jurisdiction. Our statutes, in short, cipal or ancillary administration. They seem to have adopted the policy which would will be paid when established in the ancilhe chosen by any honest man, and to look lary administration, if assets sufficient are upon the property of a decedent as a trust found within its jurisdiction. If sufhcient fund to be devoted to the payment of his assets for the payment of debts are not debts wherever they exist. It is true that found under the control of the principal every reasonable protection is cast around administration, and there is under the conthe local creditor, but in that there is no i trol of the ancillary administration money suggestion of an intent that foreign cred-assets in excess of the debts proved therein, itors may be defrauded. Such is in accord justice would forbid that such administrawith a sound public policy and a common tion should disregard the demands of right, honesty. “We cannot think,” says Chief and distribute the assets to the heirs; but, Justice Parker in the case of Dawes v. Head, as it has not before it the claims of all the 3 Pick. 128, “that in any civilized country creditors, some having been established in advantage ought to be taken of the acci- the principal administration proceedings, dental circumstance of property being found justice demands that the ancillary adminiswithin its territory, which may be reduced tration, in response to the demands of comto possession by the aid of its courts and ity, transmit the money assets to the prinlaws, to sequester the whole for the use of cipal administrator.” See also Davis v. its own subjects or citizens, where it shall | Estey, 8 Pick. 475; Dawes v. Head, 3 Pick. be known that all the estates .. of the 128; Fay v. Haven, 3 Met. 109; Joy v. deceased are insufficient to pay his just debts. Elton, 9 N. D. 444, 449, 83 N. W. 875. Such a doctrine would be derogatory to the We also find no merit in his contention character of any government.”

that $$ 8225 and 8226, which impress the An examination of the case of Re Gable, estate of a decedent with a trust in favor (Gara v. Austin) 79 Iowa, 178, 9 L.R.A. 218, of creditors, and which provide for the 44 N. W. 352, discloses the fact that under transmission of the residue of the estate to similar circumstances, and if the creditors the executor or administrator in the state had been in North Dakota and the real es- or county of the decedent's domicil, relate tate in Iowa, the Iowa court would have de- only to cases in which the decedent has left creed a sale of the real estate and the trans- a will. It will be noticed, indeed, that the mission of the funds to North Dakota. We word "administrator” as well as “executor” can hardly believe that the legislature of is used in $$ 8225-8228. North Dakota intended that it, its courts,

An administrator "is a person lawfully and its citizens should be less honest than appointed to manage and settle the estate of those of the state of Iowa. “There is an a deceased person, who has left no executor."

Smith v. Gentry, 16 Ga. 31, 32; Words and policy and intent of our statute very clearly Phrases Judicially Defined, vol. 1, p. 198. contemplate that property of decedents left A distinction is made in law between an ex- | undisposed of at death

shall, for ecutor and an administrator. See Webster's the purposes of ascertaining and protecting Dictionary. There is nothing in the sections the rights of creditors and heirs, and propbefore us which give any reason for or any erly transmitting the title of record, be subintimation of any desire on the part of the jected to the process of administration in legislature that their provisions shall be the probate court.' Re Strong, 119 Cal. confined to cases of testacy. It is also to 663, 51 Pac. 1078. This indebtedness was be noticed that the statutes make use of the property of the deceased, Ludwig the word “estate,” and not "personal prop- Friese, and the statute prescribes the course erty.”

to be taken for its proper distribution. It Nor do we believe that there is any merit is not permissible, therefore, for these plainin the argument that § 8134, Rev. Codes tiffs to disregard the due administration of 1905, and which provides that any local the estate ... in any court other than creditor may make an application for the the county or probate court. The estate of sale of real estate if the administrator neg. Ludwig Friese must first be subjected to lects so to do, covers local creditors merely, the claims of creditors before any distribuor creditors who have proved their claims tion of it can occur, and it is not the policy in North Dakota, and that there is no ma. of the statute to permit any person claiming chinery provided for in cases such as that decedent's property to take possession of it before us. The legislative intention that the until all debts are paid. . . We have estate shall be impressed with a trust ap- seen that heirs or devisees, as such, have pears to us to be clear. It also appears to no right to decedent's property until his us that it was the intention that the rights debts are paid. The creditors are the first of foreign creditors who had proved their preferred parties in interest, and, until satclaims in another jurisdiction should be isfied, heirs or legatees have no enforceable based rather upon comity than upon the interest. Haynes v. Harris, 33 Iowa, 517.” concession of a natural right, and that a It is next urged that to lay down the wise discretion should be used in relation rule announced in this opinion would be to the matter. We believe that under such highly dangerous, as it would permit the circumstances the omission to provide for appointment of an administrator in a state the machinery is in no way important; the in which the deceased had little or no propordinary machinery of the law being deemed erty, and that “fake” claims of all kinds adequate for the purpose.

and descriptions might be presented withIn this connection it is well to take up the out any notice or chance to defend being further claim of respondent that upon the given to the local creditors. We do not, death of the deceased the real estate vested however, anticipate any such danger. In the in the heirs, and could not be subjected to case at bar, the claims of petitioners were the payment of debts such as those before presented in the domiciliary court, and us, or, to use the words of the petition, that where they would naturally be expected to "our statutes, being a rule of property, be presented. There can come no harm to vested the title in the heirs freed from the the local creditors in this case for the creditors' claims after the limitations." simple reason that there are no local credWhether this be true generally it is not for itors, and the controversy is merely between us to determine. It is sufficient for us to the heirs and the Iowa creditors. The heirs say that SS 3741 and 3742 of the Code have certainly had an opportunity to defend, and already been construed by this court, and a knowledge of, the proceedings in Iowa. then in the case of Friese v. Friese, 12 N. D. So, too, we do not hold that in every case 82, 85, 86, 95 N. W. 446, we find it stated the local and ancillary administration may that “property not disposed of by will passes be required to transmit all of the funds, or to the heirs, • subject to the control to sell and transmit the proceeds of the of the county court, and to the adminis- real estate, to the domiciliary state. If trator appointed by that court for the pur- there are local creditors who have had no pose of administration. Section 3741, Rev. legal notice of the proceedings in the domiCodes 1899. Such property is to be dis- ciliary state, we have no doubt that the tributed subject to the payment of the debts court may protect their interests, and that of the intestate. Id. § 3742. Under these in the same way it may protect such credsections, the administrator or executor has itors against fraud. It is a question of the exclusive right to the personal property comity and of sound judicial discretion. for purposes of administration. Jahns v. Comity and sound judicial discretion would Nolting, 29 Cal. 508. 'The whole matter never require the transmission of funds, or of dealing with the estates of deceased per- assets, or the sale of property, when it sons is one of statutory regulation, and the would be fraudulent as to local creditors.

So, too, the assets would necessarily be has no authority over the representative of transferred to be disposed of according to the other to compel him to bring in such the laws and the judgment of the domi- assets, whether it be the court of the domiciliary state and the domiciliary court. If ciliary or of the ancillary jurisdiction.” no sufficient notice had been given in that See also cases cited. There is no attempt court to the local creditors in the ancillary in the cases at bar on the part of the Iowa state, we have no question that the domi- court to enforce its powers here. It merely ciliary court would protect their rights. petitions the local court to exercise its un

We are cognizant of the fact that at com- doubted powers, and in conformity with jusmon law the real estate of a decedent could tice and with interstate comity. not be subjected to the payment of debts. We have also examined the cases of Smith We are, however, dealing with statutes, and v. Union Bank, 5 Pet. 518, 8 L. ed 212; not with the common law.

Vaughan v. Northup, 15 Pet. 1, 10 L. ed. Nor have we any fault to find with coun- 639; Aspden v. Nixon, 4 How. 467, 11 sel's definition of the word “comity," and L. ed. 1059; Stacy v. Thrasher, 6 How. 44, that comity is "a willingness to grant a 12 L. ed. 337; McLean v. Meek, 18 How. privilege, not as a matter of right, but out 16, 15 L. ed. 277, and Security Trust Co. v. of deference and good will.” We, in fact, Black River Nat. Bank, 187 U. S. 211, 47 hold that petitioners have no rights, but L. ed. 147, 23 Sup. Ct. Rep. 52, which are are merely entitled to the protection which cited by counsel for respondent. We believe, comity should give, and that our legislature however, that the reasoning and conclusions merely recognized such comity. We, too, before pursued and arrived at will show have examined carefully the cases of Re the same to be inapplicable to the case Gable (Gara v. Austin), 79 Iowa, 178, 9 before us. We do not, indeed, find that the L.R.A. 218, 44 N. W. 352; Hadley v. Greg. decisions mentioned, when carefully examory, 57 Iowa, 157, 10 N. W. 319; McCrary ined in connection both with the facts v. Tasker, 41 Iowa, 260, and Conger v. Cook, therein disclosed and the law pronounced, 56 lowa, 117, 8 N. W. 782, which are cited are in any way antagonistic to the concluby counsel for respondent in support of the sions herein arrived at. proposition that the Iowa courts under sim- Finally, counsel for respondent contends ilar circumstances would not grant similar that $S 8226-8228, Rev. Codes 1905, and privileges. We, however, construe them which, in our opinion, make a trust estate otherwise. We have also read 18 Cyc. 1233, of the property of a deceased person for the 1233d, 1234c, and Durston v. Pollock, 91 benefit of his creditors, only apply where Iowa, 668, 60 N. W. 221; but with the same the deceased died insolvent, and that a sale result. In 18 Cyc. 1235, indeed, and of the real estate can only be ordered under after the statements referred to by counsel such statutes where there is proof that the for the respondent, we find the following: entire property of the decedent is insuffi“As a general rule assets remaining in the cient to pay his debts. He asserts that inhands of an ancillary representative after solvency is not in this case, that it is not paying the claims of local creditors will be set forth as a ground for relief in the petitransferred to the place of the domicil fortion, and that there is no testimony regarddistribution. This rule, however, is not ab- ing it in either court. We cannot, however, solute or inflexible, but, on the contrary, so hold. The petition alleges that "said the transfer will or will not be made as Eulalie Lillie owned no real property in the the court may deem proper in the exercise state of Iowa, and the personal property of of a sound judicial discretion, according to which she died seised did not exceed in value the circumstances of the case. In the ab- the sum of $200.” It further alleges that sence of special circumstances making a claims in excess of $14,150 have been proved local distribution proper, the general rule and allowed in said state. The answer adshould prevail, since the distribution, wher- mits “that the estate of decedent in the ever made, must be according to the law state of Iowa does not exceed in value the of decedent's domicil, and comity requires sum of $200.” The record shows real estate that it should be accorded to that jurisdic. | in North Dakota of an appraised value tion; but the court may, even in cases of $14,600, with outstanding mortgages where a transmission of the residue is amounting to $4,130 exclusive of interest, proper, refuse to so order until the domi- and no personal property, and debts in Iowa ciliary representative has given a sufficient amounting in all to $20,059.70, exclusive of bond to secure its proper administration. interest. It would be absurd to state that While there is no question as to the author. the Iowa estate is not insolvent, or that the ity of the court in the ancillary jurisdic- North Dakota and Iowa estates taken totion to order a residue of assets in that gether are not in the same condition. We jurisdiction transnitted to the domiciliary believe that this is all the showing that is representative, the court of one jurisdiction required by the statute.

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It is also claimed that the liability under | NORTH DAKOTA SUPREME COURT. the notes to the petitioners, Karl W. Kendall and First National Bank of Marion,

AMADA FRENCH, Respt., Iowa, is a joint liability merely as an accommodation maker, and that there is no


COMPANY, Appt. showing as to the resources of the other makers. We do not, however, deem this fact

(29 N. D. 426, 151 N. W. 7.) to be of any importance here. Even if we can, and should, go behind the findings of Pleading amendment discretion. the Iowa court in this case which allowed 1. The allowance of amendments rests these claims against the estate of the de- largely within the sound discretion of the ceased, we can see no reason for criticizing

trial court.


The mere or repudiating that allowance.

conformance to facts. fact that the deceased signed the notes in fendant was not misled, surprised, or in any

2. Where it clearly appears that the dequestion as an accommodation maker and way prejudiced from maintaining his defense without consideration, if such be the case, upon the merits, an amendment of the comdid not release her, and does not now re- plaint to conform to the facts proved should lease her estate from a primary liability

be allowed.

form of action. to pay them. She signed the notes on their Appeal – misjoinder

3. The objection that there is a misjoinface, along with the other makers. The

der of causes of action, or that a cause is contract, as expressed by the terms of the of equitable, and not of legal, cognizance, notes, is a direct and absolute promise to cannot be raised for the first time on appeal. pay them in full. By so signing the notes Reformation insurance policy she made herself primarily liable, and the covery.

4. An insurance contract may be reformed payee is not required to first exhaust his

and a recovery thereon enforced in the same remedies against the other parties. “The

action. maker upon the face of the paper, with what

Insurance agent of insurer. ever motive or purpose he may sign it,” says 5. Agents for an insurance company, authe supreme court of California in Aud v. thorized to procure applications for inMagruder, 10 Cal. 282, "is bound by the surance, and to forward them to the comcontract which he signs, according to the pany for acceptance, are deemed the agents legal effect and meaning of the words. Hel of the insurers in all that they do in prepar

ing the application. Hence, when such cannot vary that meaning by parol. The agent makes out an application incorrectly, words import an unconditional promise to notwithstanding the facts are truthfully pay the payee so much money at a certain stated to him by the applicant, such error is time. The law affixes to this unequivocal chargeable to the insurer, and not to the

insured. language its obvious signification. The

Same hail – misdescription of land. payor is not permitted to contradict the

6. A misdescription of the land on which words by showing that when he promised crops, insured against hail, are growing, to pay absolutely, he meant to bind himself will not, of itself, prevent a recovery in to pay conditionally, or on some contingency, case of loss. And where such misdescription or if another did not, or if demand was

is due solely to the error of the agent of the made and notice given. This contract being tion for such insurance, it is not necessary

insurance company in preparing the applicahis own, and precise in its terms, he must to bring an action in equity to reform the fulfil it according to those terms.” This has policy; but the insured may, by setting been the holding of this court. See Northern forth the facts relating to the mistake, in State Bank v. Bellamy, 19 N. D. 509, 31 his complaint, bring an action at law there

on in the first instance. L.R.A. (N.S.) 149, 125 N. W. 890. See also § 6495, Rev. Codes 1905; Inkster v. First

(February 2, 1915.) Nat. Bank, 30 Mich. 147; Lord v. Ocean Bank, 20 Pa. 384, 59 Am. Dec. 728.

A The order of the District Court is re

PPEAL by defendant from a judgment

of the District Court for Walsh County versed, and the cause is remanded for fur- in plaintiff's favor in an action brought to ther proceedings according to law and the conclusions reached in this opinion.

Headnotes by CHRISTIANSON, J.

Note. Goss, J., being disqualified, did not par in the application of false answers to ques

As to effect of agent's insertion ticipate.

tions correctly answered by the insured, see

note to Suravitz v. Prudential Ins. Co. Petition for rehearing denied.

L.R.A. 1915A, 273.

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