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 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 Revised Codes of 1905 provides that "when any person having title to any estate, not otherwise limited by marriage contract, dies without disposing of the estate by will, it is succeeded to and must be distributed, unless otherwise expressly provided in this Code, and the Probate Code, subject to the payment of his debts." In this clause there is no qualification as to where those debts shall exist, or where they shall have been allowed. Section 8093 of the Code provides: "All the property of the decedent except as otherwise provided for the homestead and personal property set apart for the surviving wife or husband and minor child or children shall be chargeable with the payment of the debts of the deceased, the expenses of administration and the allowance to the family, and the property, personal and real, may be sold as the court may direct in the manner hereinafter prescribed." Section 8096 provides: "The estate real and personal given by will to legatees or devisees is liable for the debts, expenses of administration and allowance to the family. . . ." be paid out of the assets found here until all those who are citizens have received their just proportions as provided in the preceding section." Section 8228 provides: "If there is any residue after such payment to the citizens of this state, it may be paid to any other creditors who have duly proved their debts here, in proportion to the amount due to each of them, but no one shall receive more than would be due to him if the whole estate was divided ratably among all the creditors as before provided. The balance may be transmitted to the foreign executor or administrator, or if there is none, it shall after the expiration of one year from the appointment of the administrator be distributed ratably among all creditors both citizens and others, who have proved their debts in this state." "When a sale of Section 8134 provides: property of the estate is necessary to pay the allowance of the family or the debts outstanding against a decedent, or the debts, expenses or charges of administration or legacies, or when such sale is for the best interests of the estate and the persons interested in the property to be sold, whether it is or is not necessary to pay the debts or family allowance, the executor or administrator may also sell any real estate as well as personal property of the estate in his hands and chargeable for that purpose upon the order of the county court; and an application for the sale of real property may also embrace the sale of personal property. To obtain an order for the sale of real property the executor or administrator must present a verified petition to the county court, setting forth the amount of personal property that has come into his hands as assets, and how much thereof, if any, remains undisposed of; the debts outstanding against the decedent, as far as can be ascertained or determined; the amount due upon the family allowance, or that will be due after the same has been in force for one year; the debts, expenses and charges of administration already approved, and an estimate of what will or may accrue during the administration; the facts showing the sale to be for the best interests of the estate, if the application is made upon that ground; a general description of all the real property, except the homestead, of which the decedent died seized, or in which he had any interest, or in which the estate has acquired any interest, and the condition and Section 8227 provides: "To this end his value thereof; the names of the legatees 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 peti Section 8225 provides: "Upon the settlement of such estate and after the payment of all debts for which the same is liable in this state, the residue of the personal estate may be distributed and disposed of in manner aforesaid by the county court; or in the discretion of the court, it may be transmitted to the executor or administrator, if any, in the state or country where the deceased had his domicil, to be there disposed of according to the laws thereof." Section 8226 provides: "If such person dies insolvent, his estate found in this state shall, as far as practicable, be so disposed of that all his creditors here and elsewhere may receive each an equal share in proportion to their respective debts." tion; but a failure to set forth the facts showing the sale to be necessary will not invalidate the subsequent proceedings, if the defect be supplied by the proofs at the hearing, and the general facts showing such necessity is stated in the decree. If it appears to the court from such petition that it is necessary to sell the whole or some part of such real estate, for the purposes and reasons mentioned in this section, or any of them, or that such sale is for the best interests of the estate, such petition must be filed and an order thereupon made directing all persons interested in the estate to appeal before the court at a time and place specified, not less than four, and not more than ten, weeks from the time of making such order, to show cause why an order should not be granted to the executor or administrator to sell so much of the real estate of the decedent as is necessary, or for the best interests of the estate." It seems to us quite clear from the foregoing sections of the Code, and especially §§ 5187, 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 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, (Gara v. Austin) 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 Re Gable, supra, “wherever the laws of comity rest which impel 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 where 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 that justice may be enforced and upheld, can have no more binding obligation resting upon it than that which requires that it shall do justice. Under the law upon the subject, which prevails over the whole Union, all the property of a decedent, including his lands, except a homestead and other exemptions, is subject to the payment of his debts, and is assets for that purpose. Debts must be paid before the assets can be distributed to the heirs, legatees, and devisees, without regard to the place of residence of the creditors. Justice requires that creditors should be paid when they have duly established. their claims. Such claims may be established either in the principal or ancillary administration. They will be paid when established in the ancillary administration, if assets sufficient are found within its jurisdiction. If sufficient assets for the payment of debts are not found under the control of the principal administration, and there is under the control of the ancillary administration money assets in excess of the debts proved therein, justice would forbid that such administration should disregard the demands of right, and distribute the assets to the heirs; but, as it has not before it the claims of all the creditors, some having been established in the principal administration proceedings, justice demands that the ancillary administration, in response to the demands of comity, transmit the money assets to the principal administrator." See also Davis v. Estey, 8 Pick. 475; Dawes v. Head, 3 Pick. 128; Fay v. Haven, 3 Met. 109; Joy v. Elton, 9 N. D. 444, 449, 83 N. W. 875. 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 domicil, 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 §§ 8225-8228. An administrator "is a person lawfully appointed to manage and settle the estate of a deceased person, who has left no executor." Nor do we believe that there is any merit in the argument that § 8134, Rev. Codes 1905, and which provides that any local creditor may make an application for the sale of real estate if the 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. Smith v. Gentry, 16 Ga. 31, 32; Words and policy and intent of our statute very clearly I 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 is not permissible, therefore, for these plaintiffs to disregard the due administration of the estate . . in any court other than the county or probate court. The estate of Ludwig Friese must first be subjected to the claims of creditors before any distribution of it can occur, and it is not the policy of the statute to permit any person claiming decedent's property to take possession of it until all debts are paid. We have seen that heirs or devisees, as such, have no right to decedent's property until his debts are paid. The creditors are the first preferred parties in interest, and, until satisfied, heirs or legatees have no enforceable interest. Haynes v. Harris, 33 Iowa, 517.” It is next urged that to lay down the rule announced in this opinion would be highly dangerous, 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 case 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 proceedings 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 property, when it would be fraudulent as to local creditors. 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 that court for the purpose of administration. Section 3741, Rev. Codes 1899. 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 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 undoubted powers, and in conformity with justice and with interstate comity. 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. We have also examined the cases of Smith v. Union Bank, 5 Pet. 518, 8 L. ed 212; Vaughan v. Northup, 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 pursued 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. 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 (Gara v. Austin), 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, and 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, 1233d, 1234c, and Durston v. Pollock, 91 Iowa, 668, 60 N. W. 221; but with the same result. In 18 Cyc. 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 decedent's domicil, and comity requires that it should be accorded to that jurisdic-in North Dakota of an appraised value tion; 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 authority of the court in the ancillary jurisdiction to order a residue of assets in that jurisdiction transmitted to the domiciliary representative, the court of one jurisdiction' required by the statute. Finally, counsel for respondent contends that §§ 8226-8228, 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 proved and allowed in said state. The answer admits "that the estate of decedent in the state of Iowa does not exceed in value the sum of $200." The record shows real estate of $14,600, with outstanding mortgages amounting to $4,130 exclusive of interest, and no personal property, and debts in Iowa amounting in all to $20,059.70, exclusive of interest. It would be absurd to state that the Iowa estate is not insolvent, or that the North Dakota and Iowa estates taken together are not in the same condition. We believe that this is all the showing that is It is also claimed that the liability under | NORTH DAKOTA SUPREME COURT. conformance to facts. fendant was not misled, surprised, or in any 2. Where it clearly appears that the deway prejudiced from maintaining his defense upon the merits, an amendment of the comre-plaint to conform to the facts proved should be allowed. 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 lease 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 Aud 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. Bellamy, 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. Bank, 30 Mich. 147; Lord v. Ocean Bank, 20 Pa. 384, 59 Am. Dec. 728. Same hail · misdescription of land. 6. A misdescription of the land on which crops, insured against hail, are growing, will not, of itself, prevent a recovery in case of loss. And where such misdescription insurance company in preparing the applicais due solely to the error of the agent of the tion for such insurance, it is not necessary to bring an action in equity to reform the policy; but the insured may, by setting forth the facts relating to the mistake, in his complaint, bring an action at law there on in the first instance. A (February 2, 1915.) PPEAL by defendant from a judgment The order of the District Court is reof 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. As to effect of agent's insertion Goss, J., being disqualified, did not par- in the application of false answers to questicipate. Petition for rehearing denied. tions correctly answered by the insured, see note to Suravitz v. Prudential Ins. Co. L.R.A. 1915A, 273. |