respectively, were presented and filed with George L. Lillie, administrator in the county of Bottineau, North Dakota, and the judge of said court thereupon indorsed thereon the date of their filing. No other or further action was ever taken by the said administrator of George L. Lillie or by the said county court in reference thereto. On or about the 24th day of February, 1911, an order was made in the district court of Linn county, Iowa, on an application by the appellants and petitioners, Karl W. Kendall and First National Bank of Marion, Iowa, which prayed that the administrators of the decedent's estate in Iowa might be directed to apply to the county court of Bottineau county in North Dakota for an order necticut, we think that these expenses must be regarded as incurred by the ancillary administrator in the due course of his administration of the estate in this commonwealth, and that as such they should be paid out of the property available here for the payment of demands due to creditors residing in this state." 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 petitioners Karl W. Kendall and First National Bank of Marion, Iowa, in the probate proceedings brought in the district court of Linn county, Iowa (which court had probate jurisdiction), a petition was filed in the county court in and for Bottineau county, North Dakota, asking that George Lillie be appointed administrator of the estate of Eulalie Lillie situated in the state of North Dakota, and such proceedings were had thereon that George L. Lillie was duly appointed and known as the administrator of such estate. On the 7th day of June, 1910, and on the 20th day of June, respectively, the said claims of the petitioners harl W. Kendall and First National Bank' was held to be error to grant a license to sell real estate in Massachusetts to pay the Massachusetts creditors and thus to disinherit the heirs in Massachusetts, it not having been shown that the creditors used diligence to collect their debts in Louisiana or that they met with any legal impediment there; and this was particularly so when the petitioner asking leave to sell the real estate was himself executor of the estate. Livermore v. Haven, 23 Pick. 116. It may be noted that an action was afterwards begun by the creditors against the administrator upon his Massachusetts bond, but the court held that he was not liable on this bond for the personal assets in Louisiana. Fay v. Haven, 3 Met. 109. What will be considered as debts. An allowance provided by the laws of the domicil to be made to the widow and minor children of a deceased person out of his estate for their maintenance and support for the period of twelve months after his death, and which has preference over everything except funeral expenses and expenses of administration, cannot be regarded as an indebtedness that may properly be enforced, in the event of a deficiency of personal assets, against the realty of the decedent situated in another state or ju- risdiction, where there is no law in such other state or jurisdiction that provides for any such allowance. Hansel v. Chapman, 2 App. D. C. 361. In Cowden v. Jacobson, 165 Mass. 240, 43 N. E. 98, infra, "Miscellaneous," the court allowed sums paid by the Massachusetts administrator after the settlement of the account in Connecticut, being undertaker's services, and the cost of digging the grave, the decedent's body having been brought from Connecticut to Massachusetts for interment. As to this, the court observed: "No doubt, if there had been but one administrator, and he in Connecticut, these items would have been allowed in his account if duly presented to and paid by him. But though the administration here was ancillary to that in Con Must local debts be shown? There seems to be some difference of opinion in the courts as to whether claims must be made in the local jurisdiction. In Hobson v. Payne, 45 Ill. 158, upon a petition of the local administratrix appointed in Illinois where there was real property, the Illinois court gave an order for the sale of such real property for the payment of debts, it appearing that no debts had been proved locally, but that debts had been claimed against the estate in Kentucky, the place of domiciliary administration. On appeal the court reversed the decree, on the ground that it was made in a case not contemplated by the statute and for the purpose of paying supposed debts with which the local administratrix had no concern. The court observed that the creditors, if such there were, might have caused letters of administration to be taken out in Illinois and proved their claims, and the administratrix might then have obtained an order for the sale of land. After the death of the executor of an Ohio will, and the appointment of separate administrators with the will annexed in Ohio and Illinois respectively, a claim which had been brought to judgment against the Ohio executor to be paid "in due course of administration" will not support a sale of land in Illinois for its payment, Rosenthal v. Renick, 44 Ill. 202, where the court said: "A judgment against an administrator in one state is no evidence of indebtedness against another administrator of the same decedent in another state, for the purpose of affecting assets received by the latter under his administration. The administrators are not regarded as in privity with each other." Messrs. Noble, Blood, & Adamson for respondent. Bruce, J., delivered the opinion of the court: 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 the proceeds of such sale to the administrators in Iowa. No claims have been proved against the estate in North Dakota, and the funds in the hands of the administrators 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 | foreign executrix may file an authenticated copy of her appointment in the probate court of any county in this state in which there is real estate of the deceased, and then may be authorized, under an order of the court, to sell the real estate for the payment of debts of the decedent and the charges of administration, in the manner and upon the terms and conditions prescribed by the statute of this state." On the other hand, it was held in Dow V. LILLIE, that claims need not be made in the local jurisdiction. In Thomas v. Williams, 80 Kan. 632, 25 L.R.A. (N.S.) 1304, 103 Pac. 772, where land in Kansas was specifically devised by a resident of New York whose will was admitted to probate in New York, the devisees conveyed the land; thereafter the New York executor applied to the Kansas probate court of the county in which the land was situated for an order to sell it for the payment of debts and charges of administration, and this petition was granted over the objection of the devisees, and their grantee, and the decision affirmed. It was held that there being no statute of limitations applicable, the court would consider simply whether the delay was reasonable, that the evidence of the indebtedness, to wit, an order of the New York surrogate allowing it, while not conclusive against the devisees, was admissible in evidence against them. The court pointed out that the Kansas statute "in express terms (Gen. Stat. 1901, § 2950) authorizes a foreign executor or administrator, where none has been appointed in Kansas, to sell real estate of the decedent situated in this state for the payment of debts in the same manner as though he had been appointed here. This provision establishes a connection between the foreign administration and the domestic proceedings. It makes the real estate in this jurisdiction, so far as necessary for the payment of debts, assets of the estate as administered elsewhere. It places the order of the foreign court allowing a claim against the administrator upon the same footing with a similar order made in this state. Neither is conclusive against the heirs, but either is admissible in evidence against them." We are not informed whether or not there were any local debts in Higgins v. Reed, 48 Kan. 272, 29 Pac. 389, where the official headnote states that "when an executrix is appointed in another state, on the estate of a person dying out of this state, and no executor, executrix, or administrator thereon is appointed in this state, the No local debts seem to have been shown in Comstock v. Crawford, 3 Wall. 396, 18 L. ed. 34, where the statute authorized the probate court where the real estate was situated to order its sale to satisfy the just debts of the decedent when the personal property was insufficient to pay them, upon representation of this insufficiency and "the same being made to appear" to the court. It was held in that case that a sale was properly ordered on an application by the local administrator showing that he was also the administrator in Illinois (the principal place of administration), accompanied by a certificate of the probate judge in Illinois showing that the personal property had been exhausted in payment of debts, that there remained debts unpaid to an amount named, and that the sale was necessary and proper to pay such debts, of the existence and amount of which due proof had been given. The decedent was domiciled in Illinois where administration was taken out and the same administrator took out letters in Iowa county, Wisconsin, where the decedent left personal property, and the application for sale was to the probate court of Grant county, Wisconsin, where the real property was located. The question of time-reasonable delays. In Durston v. Pollock, 91 Iowa, 668, 60 N. W. 221, cited in Dow v. LILLIE, the principal place of administration was Illinois, where the plaintiff was appointed administrator with the will annexed, and there was real property in Iowa, which was specifically devised by the will and which was not inventoried in Illinois, where claims were 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 . that if the testator at his decease lived out of this state, the will may be proved in any district in which the estate conveyed or some part of it may be,' and that 'no will shall be proved after ten years from the death of the testator.'" . 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 until after the two years' time had expired in Illinois, said: "Within the two years for exhibiting claims in the probate court of Mercer county [Illinois] and at a time when the only purpose of probating the will in Ringgold county [Iowa] would be to give effect to the devise of the land, it was so admitted to probate; and we assume, as being in the line of his official duty, that it was caused by the plaintiff. This was done in April, 1887; and assuming, as we should, that he had observed his duties under the law of his appointment in Illinois, we must treat this land as accounted for by him in so far as any accounting would be required in Illinois for land situated in Iowa." In Hadley v. Gregory, 57 Iowa, 157, 10 N. W. 319, the principal place of administration was in Indiana, where all the claims were presented and where there had been full administration upon the personal assets, and it was held that an application ought not to be entertained to sell the real estate of the decedent in Iowa for the payment of his debts after the expiration of the time allowed for establishing claims had expired, where there were no peculiar circumstances shown entitling the claimant to equitable relief; and, there being no proof on the subject, the court would presume that the law of Indiana was the same as the law of Iowa with relation to limiting time for filing claims against the estate. In Lawrence's Appeal, 49 Conn. 411, supra, "Question of exhaustion," etc., where it was claimed that after eight years the creditor could not take out letters on a foreign will in order to have the land sold for the payment of debts, it was held that the statute providing that "administration upon the estate of any person shall not be granted after seven years from his decease," In Thomas v. Williams, 80 Kan. 632, 25 L.R.A. (N.S.) 1304, 103 Pac. 772, supra, "Must local debts be shown," it was held that there being no local statute of limitations relative to the case of an application by the domiciliary executor, the court in such case would consider simply whether the delay was reasonable. Where devisees have made no improvements and there is no inflexible statute of limitation, the courts will not deny the proceeding to sell land for the payment of debts on account of some delay, where there has been no real laches. Rosenthal v. Renick, 44 Ill. 202. See also Dow v. LILLIE. Sales in excess of debts. Where sales were made on the representation that the debts at the principal place of administration were $8,000, the heirs could not attack the sales because they were for more than $10,000. Comstock v. Crawford, 3 Wall. 396, 18 L. ed. 34. When the local administration is considered principal. In Hendrickson v. Ladd, 2 Dem. 402, where administration with the will annexed, the will being already probated in California, was granted in the state of New York, on the allegation that there was personal property there, not stating anything about creditors in New York, it was held that such administration was principal, and not ancillary, and that therefore the administrator might bring a proceeding to "an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense." N. Y. 1, 4, 28 Am. Rep. 88; Mills v. Thursby, 2 Abb. Prac. (N. Y.) 432; Crosby's Estate, 55 Cal. 574, 588; Smith v. Westerfield, 88 Cal. 374, 26 Pac. 206. Proceedings, indeed, such as those before us have repeatedly 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 Joseph, 118 Cal. 660, 50 Pac. 768; Re Burwas 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, 1126 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, 239 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. 752; Wildman v. Wildman, 70 Conn. 700, 41 Atl. 1. A special proceeding, on the other hand, is a remedy which is of statutory origin. Roe v. Boyle, 81 N. Y. 305; Hyatt v. Seeley, 11 N. Y. 52; Re Ryers, 72 sell the real estate in the state of New York for the payment of debts, which could not be done by the holder of ancillary letters. Where administration was granted in Tennessee upon the solvent estate of a resident who at the time of his death owned in Mississippi land, but no personal property, it was held that the creditors might not bring a bill in equity in Mississippi to subject this land to the payment of their debts for the reason that under the law of Mississippi an administrator could be, and should be, appointed; the court pointing out that under the Mississippi statute, personal property situated in that state is distributed according to its laws, notwithstanding the domicil of the decedent is in another state, and that the necessary effect of this statute was to abolish ancillary administration altogether, and that the statute further devoted the real estate alike with the personal to the payment of the intestate's debts. Partee v. Kortrecht, 54 Miss. 66. Distribution of proceeds. In Davis v. Estey, 8 Pick. 475, where an intestate died in Vermont, letters were taken out upon his estate there and his administrators afterwards took out letters of administration in Massachusetts and obtained license to sell his real estate there for the payment of debts, and there was enough property in Massachusetts to pay the Massachusetts creditors, but the entire 363; Re Sullivan, 40 Wash. 202, 111 Am. St. Rep. 895, 82 Pac. 297. It is an order, not a judgment, for in such cases the district court enters no judgment. See Rev. Codes 1905, §§ 7986, 7989. Being a final order in a special proceed estate was insolvent, it was held that the Massachusetts creditors were only entitled to their pro rata share. Where, at the request of administrators with will annexed in Pennsylvania, which was the state of the domicil of the insolvent decedent, administration was granted by the court in Iowa, where the decedent left large real estate, which was thereupon sold, and the debts proved in Iowa satisfied, the court directed that the surplus should be paid to the principal administrators in Pennsylvania against the plea of those claiming as heirs or distributees of the testator. Gable (Gara v. Austin) 79 Iowa, 178, 9 L.R.A. 218, 44 N. W. 352, referred to and quoted from in the principal case. Miscellaneous. Re In Mackin's Estate, 11 W. N. C. 207, the court observed that a widow of a New Jersey decedent who proved his will there, and took out letters, and then took out ancillary letters in Pennsylvania, could not sell and convey a good title to the Pennsylvania real estate without authority from the Pennsylvania orphan's court and upon entering security. In Higgins v. Reed, 48 Kan. 272, 29 Pac. 389, where the application was by the domi ciliary executrix, it was held that the omission of the local court to require a bond. if any error at all, was a mere irregularity, and not jurisdictional. An intestate resident of Connecticut, where the whole blood took to the exclusion the decedent was a resident of the state of ing, no statement of the case was required. we are at liberty to examine the deposi- Not only then is the order appealable, but of the half blood, died leaving real and personal property there, and also real property in Massachusetts, and leaving a brother resident in Massachusetts and a minor halfsister resident in Maine. An administrator resident in Massachusetts was appointed in Connecticut and administered the estate there, and the brother submitted a claim on a promissory note against the estate to the Connecticut judge of probate who, finding than there was real property in Masachusetts, disallowed the claim, and the administrator's accounts in Connecticut were passed and a surplus was directed to be paid to the brother. The same administrator qualified as administrator in Massachusetts and sold the real estate there, and it was held that out of the sale of such real estate the claim of the brother on the note should be paid, the brother's receipt of the surplus from Connecticut having been as brother and not as creditor. The minor half-sister had received notice of the petition to sell the real estate in Massachusetts, "and also of the action of the court in Connecticut in regard to distribution," but made no objection to the proceedings until the administrator in Massachusetts presented his account for allowance. Cowden v. Jacobson, 165 Mass. 240, 43 N. E. 98. It may be noted that the following cases cited in Dow v. LILLIE do not seem to have had to do with the sale of land for the payment of debts: Aspden v. Nixon, 4 How. 467, 11 L. ed. 1059; Vaughan v. Northup, 15 Pet. 1, 10 L. ed. 639; Stacy v. Respondent next contends that appellants can have no relief, for the reason that their claims were presented to the administrator of the decedent's estate in North Dakota, that there is no record of their approval by him, and that no suit was brought upon them within the period prescribed by § 8105, Rev. Codes 1905. We do not, however, consider these facts to be pertinent. An administrator's act in passing upon a claim is not res judicata. In allowing or rejecting any claim he acts merely as an auditor. His allowance or rejection simply means that he is or is not satisfied as to the justice of the claim, but it is in no sense a judicial determination, as he is not vested with judicial functions respecting it. Chambers v. Chambers, 38 Or. 131, 62 Pac. 1013. It was not necessary in this case that the claims should have been proved or adjudicated in North Dakota. They were Thrasher, 6 How. 44, 12 L. ed. 337; McLean v. Meek, 18 How. 16, 15 L. ed. 277; that of other cases there cited McCrary v. Tasker, 41 Iowa, 255, and Conger v. Cook, 56 Iowa, 117, 8 N. W. 782, apparently related to sales in the jurisdiction of domicil; and that Smith v. Union Bank, 5 Pet. 518, 8 L. ed. 212, did not relate to real property. Security Trust Co. v. Black River Nat. Bank, 187 U. S. 211, 47 L. ed. 147, 23 Sup. Ct. Rep. 52, cited in Dow v. LILLIE, decided simply that a proceeding would not lie against an administrator upon a claim which was barred by the state statute of limitations, the action being brought in the United States court. It may be noted that Bacon v. Chase, 83 Iowa, 521, 50 N. W. 23, which is not clearly reported, rests upon estoppel; that Re Donelly, 19 Ont. W. Rep. 708, while possibly within the scope of this note, is not sufficiently reported; and that in Rapp v. Matthias, 35 Ind. 332, the deficiencies in the proceedings and the merits of the case were so entirely against the application as to make it of no value on the subject. In Hapgood v. Jennison, 2 Vt. 294, it appears that the executor of a will proved it in Massachusetts and took out letters, and then proved it in Vermont, and took our letters of administration there, and made sales of land in Vermont for the payment of debts, but the terms of the will do not appear, or whether there was any power of sale in it or not. B. B. B. |