Mearkle v. County of Hennepin

• Decision Date: 29 November 1890
• Citation: 44 Minn. 546
• Parties: ERASTUS F. MEARKLE and others, Executors, <I>vs.</I> COUNTY OF HENNEPIN.
• Court: Minnesota Supreme Court

44 Minn. 546

ERASTUS F. MEARKLE and others, Executors, vs. COUNTY OF HENNEPIN.

Supreme Court of Minnesota.

November 29, 1890.

Appeal by defendant from an order of the district court for Hennepin county, Young, J., presiding, overruling a demurrer to the complaint.

Robert Jamison and Frank M. Nye, for appellant.

Hale & Peck, for respondents.

DICKINSON, J.¹

This action is for the recovery of the sum of $5,000, which the plaintiffs, as the executors of the will of Thomas A. Harrison, paid to the treasurer of Hennepin county, in March, 1888, pursuant to the statute, (Laws 1885, c. 103,) and which, by the terms of the law, was required to be so paid as a condition precedent to the exercise of the jurisdiction of the probate court in the settlement of the estate. The provisions of that law are more fully set forth in our decision in State v. Gorman, 40 Minn. 232, (41 N. W. Rep. 948,) in which the statute was held to be unconstitutional. This appeal is from an order overruling a demurrer to the complaint, and the question to be decided is whether, the law requiring such payment to be made being unconstitutional, the money paid under the circumstances stated in the complaint may be recovered by action.

The circumstances connected with the payment were as follows: The deceased was a resident of Hennepin county at the time of his death. His will was duly proved in the probate court of that county, and these plaintiffs became the qualified executors of it. An appraisal of the estate was made in accordance with the law, which showed that there was personal property belonging to the estate of the value of $897,058.79, and real property of the value of $383,600. Upon the return and filing of the inventory in probate court, the judge of that court, pursuant to the provisions of the statute, refused to allow the further administration of the estate to proceed, without the payment into the county treasury of the sum of $5,000, although the plaintiffs formally petitioned the court for the allowance of further proceedings, and sought an order for creditors to produce and file their claims. The payment was then made, under a formal protest in writing, wherein the executors set forth the refusal of the probate court to allow such proceedings for the settlement of the estate except upon the condition precedent that such payment be made, and wherein they protested against such requirement on the ground that the statute was unconstitutional and void. Included in the personal property of the estate was a large amount of commercial paper, bonds, and stocks, which required immediate attention on the part of the executors, and any delay in the settlement of the estate would have been of...