Dow v. Lillie

• Decision Date: 08 January 1914
• Parties: DOW et al. v. LILLIE.
• Court: North Dakota Supreme Court

26 N.D. 512

144 N.W. 1082

DOW et al.

v.LILLIE.

Supreme Court of North Dakota.

Jan. 8, 1914.

Syllabus by the Court.

An order of the district court which confirms an order of the county court in an ancillary administration refusing to grant a petition, filed by the principal administrator under the direction of the principal court, for the sale of real estate in North Dakota and the transmision of the proceeds thereof to such principal court for the payment of the debts there provided, is a final order, affecting a substantial right made in a special proceeding, and is appealable as such under section 7225, Rev. Codes 1905.

In the case of such an appeal, and where the trial in the district court was had upon a stipulation of facts and depositions which were included in the certified record on appeal from the county to the district court, and no oral evidence was taken in the latter court, no statement of the case is necessary, and the Supreme Court can take into consideration the evidence as presented by the depositions and the stipulations.

In allowing or rejecting a claim, an administrator acts merely as an auditor, and his refusal to allow such claim is not res adjudicata.

Where there is both a principal and an ancillary administration, creditors may prove their claims in either jurisdiction, and it is not always necessary that they should be proved in both.

Under the Code of North Dakota the heirs or devisees have no right to a 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.

Where a resident of Iowa died in that state and administration of her estate was had, and on such administration a creditor proved his claim and said claim was allowed by the court, but there were not assets in such jurisdiction sufficient to pay the same, and an ancillary administration was had in North Dakota where there was real estate belonging to the estate, but no money or personal property, and there were no debts, and a petition was filed in said ancillary administration by the administrator in the principal administration under the direction of said principal court, asking for the sale of the real estate in North Dakota and the transmission of the proceeds to said principal court for the payment of the debts there proved and allowed, held that said petition should have been granted, even though such debts had not been proved in North Dakota in the said ancillary administration.

Additional Syllabus by Editorial Staff.

An ancillary administration, not being “an ordinary proceeding” within Rev. Codes 1905, § 6742, defining an action as an ordinary proceeding in a court of justice by which a party prosecutes another person for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense, must be classified as a special proceeding, under section 6743, providing that every other remedy is a special proceeding.

As the terms are used in Rev. Codes 1905, §§ 6741-6743, dividing remedies into actions and special proceedings, defining an action as an “ordinary proceeding,” and providing that every other remedy is a “special proceeding,” an “ordinary proceeding” is such a proceeding as was known to the common law and was formerly conducted in accordance with the proceedings of the common-law courts, and as is generally known under the modern Codes to be such a proceeding as is started by the issuance of a summons, and results in a judgment enforceable by execution, while a “special proceeding” is a remedy which is of statutory origin.

An “administrator” is a person lawfully appointed to manage and settle the estate of a deceased person who has left no executor (citing Words and Phrases, vol. 1, p. 198. See, also, volume 8, p. 7566).

A person who signs a note on its face, along with the other makers, may be held primarily liable thereon without the payee's remedies against the other makers having been previously exhausted, though oral evidence would show that he signed as an accommodation maker without consideration.

“Comity” is a willingness to grant a privilege, not as a matter of right, but out of deference and good will.

Appeal from District Court, Bottineau County.

Application by L. C. Dow and another, as domiciliary administrators of Eulalie Lillie, deceased, and others, for the sale of lands of deceased in North Dakota by George Lillie, ancillary administrator in North Dakota of said decedent, and the transmission of the proceeds to the domiciliary administrators to pay debts. From an order of the district court, on appeal from the county court, denying the application, petitioners appeal. Reversed and remanded.

This litigation was started by the filing of a petition in proceedings pending in the county court of Bottineau county, N. D., relating to the administration of the estate of Eulalie Lillie, deceased. The petition was filed by the administrator in the principal administration of said estate held in the district court of Linn county, Iowa, such administrator having been directed to file the same by the presiding judge of the Iowa court. The petition alleged the principal administration in Iowa, the allowance of claims therein far in excess of the assets of said estate, and prayed the county court of Bottineau county, N. D., to direct the sale of the lands located in North Dakota and to transmit the proceeds to the administrator of the estate in Iowa, to be used in paying the debts there proved. The petition was heard by the county court of Bottineau county and denied. An appeal was seasonably taken from this order to the district court of Bottineau county. That court heard the proceedings upon the record which was made in, and which was sent up by, the county court, and on a stipulation of facts. The record of the county court included the depositions on which the cause was originally tried. The district court affirmed the order of the county court in all respects, and an appeal was taken from this order to the Supreme Court. The facts as disclosed by the record and the stipulations are as follows: Eulalie Lillie at the time of her death was a resident of Marion, in the state of Iowa. On or about December 2, 1908, George L. Lillie, the respondent, filed a petition in the district court of Linn county, Iowa, asking that the estate of Eulalie Lillie be admitted to probate, and in the proceeding thus started an order was made appointing L. C. Dow and Josephine Lillie, two of the petitioners above named, as administrators. During her lifetime the said Eulalie Lillie had given to Karl W. Kendall notes aggregating $12,500. On April 27, 1909, these notes, together with other claims, were proved against the estate in Iowa and were allowed by the court and are now unpaid. The decedent also during her lifetime gave to petitioner the First National Bank of Marion, Iowa, her notes to the amount of $2,000. On April 23, 1909, these notes were also proved against the Iowa estate, and were allowed by the court in the sum of $1,650, which sum is still unpaid. Decedent left no real estate in the state of Iowa and only $200 in personal property. Decedent left no personal property in North Dakota, but did leave real estate which was appraised in the probate proceedings at $14,400. During the month of May, 1911, and after the approval 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, N. D., asking that Geo. 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, 1911, and on the 20th day of June, respectively, the said claims of the petitioners Karl W. Kendall and First National Bank of Marion, Iowa, for $14,510.93 and $1,650, respectively, were presented and filed with George L. Lillie, administrator in the county of Bottineau, N. D., 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 Geo. 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 directing the administrator of the North Dakota estate to institute proceedings to 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 to pay the claims of the petitioners. Appellants Karl W. Kendall and First National Bank of Marion, Iowa, are both residents of Marion, Linn county, Iowa. This appeal is taken from the order of the district court affirming the order of the county court. There is no demand for a trial de novo, nor is there any settled statement of the case, nor any specifications of fact that the appellants desire this court to review.Engerud, Holt & Frame, of Fargo, for appellants. Noble, Blood & Adamson, of Minot, for respondent.

BRUCE, J. (after stating the facts as above).

[1] The first point made by the respondent is that the appeal should be dismissed on the ground that the order is not an appealable one, and that the appellants have failed to demand a trial de novo, or to specify certain...