The fact that a representative includes notes or other claims against himself does not estop him from denying his indebtedness thereon."

801. Effect upon creditors-The duties of representatives in respect to inventorying property do not affect the rights of creditors of the decedent or their relation to the estate.1

802. Notation of property assigned to surviving spouse-The statute requires the court to enter upon the inventory the items of personal property assigned to the surviving spouse or children under G. S. 1913, §§ 7243, 7308.2

APPRAISAL

803. Statute-The property inventoried shall be appraised by two or more disinterested persons appointed by the court for that purpose, and if any part of such property is situated in any other county the court may, in its discretion, appoint appraisers in such other county. The appraisers shall set down opposite each item in the inventory, in figures, the value thereof in money, and foot up by itself the amount of each class, and forthwith deliver such inventory and appraisal, certified by them, to the executor or administrator.3

804. Necessity-The court may refuse to accept an inventory not accompanied by an appraisal.*

805. At market value-The property is to be appraised at its market value what it could be sold for. What it cost is immaterial.5 Bonds, stocks, notes, etc., should be appraised at their market or salable value and not at their face value. In appraising stocks and bonds their average market value during a period of several months may be taken." 806. Omitted property-Appraisal by court-If property is omitted its value may be determined by the court on the final accounting without the appointment of appraisers.

325, 36 Pac. 312; In re Murphy's Estate, 30 Wash. 1, 70 Pac. 107; 18 Cyc. 204; 23 C. J. 1167.

99 Lynch v. Divan, 66 Wis. 490, 29 N. W. 213.

1 Ainsworth v. Bank of California, 119 Cal. 470, 477, 51 Pac. 952.

2 See § 808.

3 G. S. 1913, § 7306.

4 Appeal of Bridgeport Trust Co., 77 Conn. 657, 60 Atl. 662.

5 In re Bodman's Estate, 166 N. Y. S.

714; Woerner, Am. Law of Adm. (2 ed.) § 320.

• In re Shipman, 31 N. Y. S. 571.

See 13 McKinney's Consol. Laws, N. Y. § 122; In re Crary, 64 N. Y. S. 566; In re Kennedy, 155 N. Y. S. 192; In re Chambers, 155 N. Y. S. 153; In re Gould, 46 N. Y. S. 506, 156 N. Y. 426, 51 N. E. 287; In re Proctor, 83 N. Y. S. 643; In re Curtice, 97 N. Y. S. 444, 185 N. Y. 543, 77 N. E. 1184.

8 In re Garrity's Estate, 108 Cal. 463, 38 Pac. 628.

SETTING ASIDE HOMESTEAD AND PERSONAL PROPERTY TO SPOUSE

807. Petition Statute-After the inventory has been returned to the court, the surviving spouse, or in case there be none the children, or when they are minors their guardian, may petition the court to set aside the homestead and assign the personal property allowed by law. Such petition shall show the right of the parties, and, if made by or for the children, their names and ages, a description of the homestead claimed, and of the personal property selected, and the appraised value thereof." The "personal property allowed by law" within the meaning of this statute is the personal property referred to in subdivisions 1 and 2 of G. S. 1913, § 7243. It does not include the allowance for the surviving spouse or children pending administration proceedings provided for by subdivision 3 of that section. For such allowance a separate petition should be presented.10

808. Order of court-Statute-Upon the filing of such petition, if it appears that the petitioner is entitled to have the homestead set aside and such allowance of personal property made, the court shall make an order setting apart such homestead and assigning such personal property, and shall enter upon the inventory the items so allowed. The property so set aside shall be delivered by the executor or administrator to the person entitled thereto, and shall not be treated as assets in his hands.11 In case of intestacy no order setting aside the homestead is necessary, except for the purpose of determining its boundaries and to segregate it for purposes of administration. Where there is a will giving the homestead to the wife absolutely, and she elects to continue the homestead right, an order of the probate court setting it aside to her has the same effect as in case of intestacy and nothing more.12 The rights of the surviving spouse and children in the homestead do not depend on the order under this statute. Their rights vest and become absolute on the death of the decedent, without any acts on their part or on the part of the probate court. The proceedings under this statute are merely to determine the boundaries of the homestead and to segregate it for purposes of administration. In setting apart the homestead the probate court has no jurisdiction to determine the title as against claimants claiming title otherwise than by descent or devise from the decedent.13

9 G. S. 1913, § 7307.

10 See Strauch v. Uhler, 95 Minn. 304, 104 N. W. 535; Stromberg v. Stromberg, 119 Minn. 325, 138 N. W. 428.

11 G. S. 1913, § 7308. See §§ 99-102, 112, 113, 821, 822.

12 In re Murphy's Estate, 146 Minn. 418, 178 N. W. 1003, 179 N. W. 728.

13 Wilson v. Proctor, 28 Minn. 13, 8 N. W. 830; Nordlund v. Dahlgren, 130 Minn. 462, 153 N. W. 876; Rux v. Adam, 143 Minn. 35, 172 N. W. 912; In re Mur

The personal property set apart to the widow is not assets and is no part of the residue to be assigned by the final decree of distribution.14 The jurisdiction of the probate court to set aside the homestead continues until the administration is closed, in the absence of sale or other disposition placing it beyond the control of the court.15

ASSETS

809. Definition-The term "assets" is here used in the sense of property applicable to the payment of the debts of the decedent and the expenses of administration.16

810. Jurisdiction of probate court to determine what are assets-The probate court necessarily has implied power to determine what are assets of an estate for purposes of administration.1

17

811. What constitutes-In general-All kinds of property, real or personal, tangible or intangible, legal or equitable, contingent or absolute, in possession or in remainder, owned by the decedent at the time. of his death, are assets of his estate excepting certain property hereinafter mentioned under sections 821-824.18

812. Property accruing after death of decedent-Assets are not limited to property owned or in possession of the decedent at the time of his death, but include all property accruing from the contracts of the decedent or by way of income, increase or revenue from his property, or which result from the dealings of the representative in relation to the estate everything which comes into the hands of the representative by virtue of his office.1o

813. Distinction between legai and equitable assets abolished-The distinction between legal and equitable assets which prevailed at common law does not prevail in this state. All property, whether legal or equitable, is treated alike and is subject to application to the payment of the debts of the decedent in the probate court without resort to the district court.20

phy's Estate, 146 Minn. 418, 178 N. W. 1003, 179 N. W. 728. See §§ 100, 821.

14 Stromberg v. Stromberg, 119 Minn. 325, 138 N. W. 428; State v. Probate Court, 137 Minn. 238, 163 N. W. 285; Barrett v. Heim (Minn.) 188 N. W. 207. See §§ 112, 113.

15 In re Iltz's Estate (Or.) 202 Pac. 409.

16 Mutual Life Ins. Co. v. Farmers & Mechanics Nat. Bank, 173 Fed. 390; Barnard v. Bilby (Okl.) 171 Pac. 444; 11 A. & E. Ency. of Law (2 ed.) 828; 18 Cyc. 171: 23 C. J. 1125; 11 R. C. L.

107; Woerner, Am. Law of Adm. (2 ed.) § 305.

17 McWillie v. Van Vacter, 35 Miss. 428, 445.

18 Barnard v. Bilby (Okl.) 171 Pac. 444; 11 A. & E. Ency. of Law (2 ed.) 829; 18 Cyc. 171; 23 C. J. 1125; 11 R. C. L. 107; Woerner, Am. Law of Adm. (2 ed.) §§ 304–314; L. R. A. 1915D, 856.

19 11 A. & E. Ency, of Law (2 ed.) 836; 18 Cyc. 174; 23 C. J. 1158; Woerner, Am. Law of Adm. (2 ed.) §§ 306, 307.

20 Titterington v. Hooker, 58 Mo. 593; Hood v. Hood, 85 N. Y. 561; Mutual Life

814. Property in possession of decedent-Presumption-The fact that personal property is in the possession of a decedent at the time of his death gives rise to a presumption that it is an asset of his estate.21

815. Real property-At common law real property was not, as a general rule, assets, but in this state all the real property of the decedent, with certain exceptions hereinafter mentioned, under section 821, is assets and may be sold to pay the debts of the decedent and the expenses of administration, in case of a deficiency of personal property. The personal property is the primary fund for that purpose and the real property a secondary fund.22

25

816. Rents and profits of realty-By virtue of common law the rents and profits of realty accruing during the lifetime of the decedent are personal property and pass to his representative as assets.23 It is provided by statute that the representative "shall receive the rents and profits of the real estate until the estate is settled, or until delivered over, by order of the probate court, to the heirs or devisees." 24 The representative is not entitled to the rents and profits of the homestead. If a representative takes possession of the realty he must account for the rents and profits received therefrom, and if the amount received cannot be otherwise determined, the court may charge him with the rental value of the land.26 Under the statute the representative is entitled to the rents and profits accruing during administration proceedings whether the land is specifically devised or not.27 Rents and profits of mortgaged real estate collected by the representative are not part of the proceeds of the property, and the owner of the mortgage has no lien upon them, and is not a preferred creditor in relation thereto.28 Where a mortgage on real estate provides that the mortgagee shall have the rents and profits during a foreclosure action pending the sale of the property, it is proper for the receiver to apply the rents and profits upon

Ins. Co. v. Farmers & Mechanics Nat. Bank, 173 Fed. 390; 11 A. & E. Ency. of Law (2 ed.) 854; 18 Cyc. 172; 23 C. J. 1126; Woerner, Am. Law of Adm. (2 ed.) § 313.

21 Christians v. Christians, 108 Minn. 157, 121 N. W. 633. See Ryan v. Williams, 92 Minn. 506, 100 N. W. 380; 18 Cyc. 193; 23 C. J. 1157.

22 G. S. 1913, §§ 7296, 7336, 7344; State v. Probate Court, 25 Minn. 22; 11 A. & E. Ency. of Law (2 ed.) 838; 18 Cyc. 180; 23 C. J. 1136; 11 R. C. L. 118. See §§ 943-945, 953, 956.

23 Crawford v. Ginn, 35 Iowa 543; Codman v. American Piano Co., 229 Mass. 285, 118 N. E. 344; 11 A. & E.

Ency. of Law (2 ed.) 841; 18 Cyc. 182; 23 C. J. 1138; Woerner, Am. Law of Adm. (2 ed.) 300.

This is contrary See 11 A. & E.

24 G. S. 1913, § 7296. to the common law. Ency. of Law (2 ed.) 841; 18 Cyc. 182; 23 C. J. 1139; 11 R. C. L. 123; Woerner, Am. Law of Adm. (2 ed.) § 300.

25 Nordlund v. Dahlgren, 130 Minn. 462, 153 N. W. 876.

26 Nordlund v. Dahlgren, 130 Minn. 462, 153 N. W. 876.

27 Washington v. Black, 83 Cal. 290, 23 Pac. 300; In re De Bernal's Estate, 165 Cal. 223, 131 Pac. 375; 23 C. J. 1141.

28 In re McDougald's Estate, 146 Cal. 196, 79 Pac. 875.

the indebtedness, even after the death of the mortgagor, and as against the administrator of the estate.29

817. Personal property-In general-Independent of statute all forms of personal property pass to the representative as assets and constitute the primary fund for the payment of the debts of the decedent and the expenses of administration.30

818. Contingent interests in personalty-Contingent as well as absolute interests in personalty are assets.31

819. Debts and rights of action-All debts due the decedent and all rights of action on which he might have sued pass to his representative as assets if the cause of action survives. This includes all moneys due the decedent by virtue of any bond, note, judgment, or otherwise, whether payable at the death of the decedent, or becoming payable afterwards. 32

820. Debts due from representative-Debts due from the representative to the decedent are assets. 33

821. Homestead-The homestead of a decedent is not liable for his debts or for the charges of administration unless made so by his will as authorized by G. S. 1913, § 7237(3), or unless he left no surviving spouse or children or issue of deceased children, excepting debts for labor and material as provided in section 12 of article 1 of the constitution. In other words it is not ordinarily an asset of his estate for purposes of administration. Neither the land itself nor the rents and profits thereof can be used for the purpose of satisfying claims against the estate or the charges of administration.34 The constitution makes an exception to the general rule of exemption as follows: Provided, however, that all property so exempted shall be liable to seizure and sale

29 Tetzloff v. May, 172 Iowa 617, 154 N. W. 905.

30 State v. Probate Court, 25 Minn. 22; 11 A. & E. Ency. of Law (2 ed.) 830; 18 Cyc. 173; 23 C. J. 1127; 11 R. C. L. 108. See § 735.

31 Clapp v. Stoughton, 10 Pick. (Mass.) 468; State v. Moore, 18 Mo. App. 406; 11 A. & E. Ency. of Law (2 ed.) 831.

32 Connolly v. Connolly, 26 Minn. 350, 4 N. W. 233; Lowry v. Tilleny, 31 Minn. 500, 18 N. W. 452; 11 A. & E. Ency. of Law (2 ed.) 832; 18 Cyc. 175; 23 C. J. 1130; 11 R. C. L. 109.

33 Peterson v. Vanderburgh, 77 Minn. 218, 79 N. W. 828; McEwen v. Fletcher, 164 Iowa 517, 146 N. W. 1; Wachsmuth v. Penn. Mutual Life Ins. Co., 241 Ill. 409, 89 N. E. 787; In re Mark's Estate,

81 Or. 632, 160 Pac. 540; 11 A. & E. Ency, of Law (2 ed.) 834; 18 Cyc. 177; 23 C. J. 1132; 11 R. C. L. 115; Woerner, Am. Law of Adm. (2 ed.) § 311; 26 L. R. A. (N. S.) 411; 112 Am. St. Rep. 406; 132 Am. St. Rep. 230. See §§ 691, 799, 1056, 1057.

34 Wilson v. Proctor, 28 Minn. 13, 16, 8 N. W. 830; Larson v. Curran, 121 Minn. 104, 140 N. W. 337; Nordlund v. Dahlgren, 130 Minn. 462, 153 N. W. 876. See § 103. Prior to Laws 1889, c. 46, the fee of the homestead was an asset of the estate. McCarthy v. Van Dermey, 42 Minn. 189, 44 N. W. 53; McGowan v. Baldwin, 46 Minn. 477, 49 N. W. 251; Dunn v. Stevens, 62 Minn. 380, 64 N. W. 924, 65 N. W. 348.