Stenson v. H.S. Halvorson Co.

• Decision Date: 06 June 1913
• Docket Number: 81912
• Court: North Dakota Supreme Court

147 N.W. 800

28 N.D. 151

JULIA STENSON and Ole G. Flaagen v. H. S. HALVORSON COMPANY, a Corporation, et al

No. 81912

Supreme Court of North Dakota

June 6, 1913

Appeal from District Court, Nelson County, Charles M. Cooley, J.

Action to determine adverse claim. From a judgment in plaintiffs' favor, defendants appeal.

Affirmed.

Barnett & Richardson and Lyman N. Miller, for appellants.

In the case of a person dying intestate, his estate vests at once in his heirs, subject only to the payment of his debts and expenses of administration, and the family allowance. 1 Ross Prob. Law, § 112, citing, Brenham v. Story, 39 Cal. 179; Re Sullivan, 36 Wash. 217, 78 P. 945; Bates v Howard, 105 Cal. 173, 38 P. 715; Elder v. Horseshoe Min. & Mill. Co. 9 S.D. 636, 62 Am. St. Rep. 895, 70 N.W. 1060; Re Schroeder, 46 Cal. 304; Smith v Olmstead, 88 Cal. 582, 12 L.R.A. 46, 22 Am. St. Rep 336, 26 P. 521; Murphy v. Clayton, 114 Cal. 526, 43 P. 613, 46 P. 460; N.D. Rev. Codes 1905, § 7890.

The distributive share of the real estate of an heir to the estate of his ancestor is not chargeable with such indebtedness, either as land or as the proceeds thereof in the hands of the administrator. Marvin v. Bowlby, 142 Mich. 245, 113 Am. St. Rep. 574, 105 N.W. 751, 7 Ann. Cas. 559; see case note in 4 L.R.A.(N.S.) 189; LaFoy v. LaFoy, 43 N.J.Eq. 206, 3 Am. St. Rep. 302, 10 A. 266; Mann v. Mann, 12 Heisk. 245; Parker v. Britt, 4 Heisk. 243; Close v. Van Husen, 19 Barb. 505; Smith v. Kearney, 2 Barb. Ch. 533; Kendall v. Mondell, 67 Md. 444, 10 A. 240; Dearborn v. Preston, 7 Allen, 192; Proctor v. Newhall, 17 Mass. 81; Hancock v. Hubbard, 19 Pick. 167; Jones v. Treadwell, 169 Mass. 430, 48 N.E. 339; Towles v. Towles, 1 Head, 601; Sartor v. Beaty, 25 S.C. 293; Olney v. Brown, 163 Mich. 125, 128 N.W. 241; Re Simon, 158 Mich. 256, 122 N.W. 544, 17 Ann. Cas. 723; Sprague v. Moore, 130 Mich. 92, 89 N.W. 712; Broas v. Broas, 153 Mich. 310, 116 N.W. 1077; Lodge v. Fitch, 72 Neb. 652, 101 N.W. 338; Milnes v. Sherwin, 53 L. T. N. S. 534, 33 Week. Rep. 927; Thompson v. Myers, 95 Ky. 597, 26 S.W. 1014; Power v. Power, 91 Mich. 587, 52 N.W. 60; Barton v. Rice, 22 Pick. 508.

Frich & Kelly, for respondents.

The distributive share of an heir should be retained in the hands of the administrator, and applied to his indebtedness to the estate. 23 Cyc. 1377; Koons v. Mellett, 121 Ind. 585, 7 L.R.A. 231, 23 N.E. 95; Oxsheer v. Nave, 90 Tex. 568, 37 L.R.A. 98, 40 S.W. 7; 1 L.R.A. Cases as Authorities, 926; Fiscus v. Moore, 121 Ind. 547, 7 L.R.A. 235, 23 N.E. 362; Hunter v. Citizens' Sav. & T. Co. Iowa , 138 N.W. 476; School Dist. v. Peterson, 74 Minn. 122, 73 Am. St. Rep. 337, 76 N.W. 1126.

It matters not by what name the proceeding is called, whether retainer, advancement, or set-off, the result is the same, and it rests upon the wholesome principles of right and justice. Smith v. Kearney, 2 Barb. Ch. 533; Holmes v. McPheeters, 149 Ind. 587, 49 N.E. 452; Ramsour v. Thompson, 65 N.C. 628; Duffy v. Duffy, 155 Mo. 144, 55 S.W. 1002; Courtenay v. Williams, 3 Hare, 539, 13 L. J. Ch. N. S. 461, 8 Jur. 844; Jeffs v. Wood, 2 P. Wms. 128; Sims v. Doughty, 5 Ves. Jr. 243; Oxsheer v. Nave, 90 Tex. 568, 37 L.R.A. 98, 40 S.W. 7, and cases cited; Keever v. Hunter, 62 Ohio St. 616, 57 N.E. 454; Head v. Spier, 66 Kan. 386, 71 P. 833; Re Lietman, 149 Mo. 112, 73 Am. St. Rep. 374, 50 S.W. 307; Wilson v. Kelly, 16 S.C. 216; Allen v. Smitherman, 41 N.C. (6 Ired. Eq.) 341; Fiscus v. Fiscus, 127 Ind. 283, 26 N.E. 831; Gosnell v. Flack, 76 Md. 423, 18 L.R.A. 158, 25 A. 411; Howland v. Heckscher, 3 Sandf. Ch. 519; Re Timerson, 39 Misc. 675, 80 N.Y.S. 639; Ex parte Wilson, 84 S.C. 444, 66 S.E. 675; C. A. Weston Co. v. Colby, 107 Me. 104, 77 A. 637; Esmond v. Esmond, 154 Ill.App. 357; Sanchez v. Forster, 133 Cal. 614, 65 P. 1077; Re Angle, 148 Cal. 102, 82 P. 668; Re Moore, 96 Cal. 522, 31 P. 584; Boyer v. Robinson, 26 Wash. 117, 66 P. 119; Re Smith, 108 Cal. 115, 40 P. 1037; Cowen v. Adams, 24 C. C. A. 198, 47 U.S. App. 439, 78 F. 545; Batton v. Allen, 5 N.J.Eq. 99, 43 Am. Dec. 630; Hill v. Bloom, 41 N.J.Eq. 276, 7 A. 438; Bowen v. Evans, 70 Iowa 368, 30 N.W. 638; Armour v. Kendall, 15 R. I. 193, 2 A. 311; Willock's Estate, 165 Pa. 522, 30 A. 1043; Ross, Prob. Law, § 541, p. 844; Allen v. Edwards, 136 Mass. 138; Blackler v. Boott, 114 Mass. 26; 2 Woerner, Am. Law of Administration, 2d ed. *1237, § 564.

The county courts of this state possess the necessary powers to administer remedies in accord with the general principles of equity, relating to matters of probate of wills and settlement of estates of persons dying intestate. Beach, Eq. Jur. § 1033; Williams v. Miles, 63 Neb. 859, 89 N.W. 451; Martinovich v. Marsicano, 137 Cal. 354, 70 P. 459; Head v. Spier, 66 Kan. 386, 71 P. 833; Proctor v. Dicklow, 57 Kan. 119, 45 P. 86.

The probate court has the right to make distribution and to determine who is entitled to the funds of the estate. Re Lietman, 149 Mo. 112, 73 Am. St. Rep. 374, 50 S.W. 307; Dutoit v. Doyle, 16 Ohio St. 400; Earnest v. Earnest, 5 Rawle, 213; Batton v. Allen, 5 N.J.Eq. 99, 43 Am. Dec. 630; Martin v. Martin, 170 Ill. 18, 48 N.E. 694; Dickinson's Estate, 148 Pa. 142, 23 A. 1053; Esmond v. Esmond, 154 Ill.App. 357.

OPINION

FISK, J.

The statement of facts by appellants' counsel is conceded to be correct with one minor exception, which will be noted later. Such statement is as follows:

Martin G. Flaagan was the son of one Gunder O. Flaagan. Gunder O. Flaagan died October 28, 1911, intestate, leaving among his other heirs, the said Martin G. Flaagan.

Prior to the death of Gunder O. Flaagan he had loaned to his son approximately $ 900, evidenced by promissory notes, which appear in the record as exhibits A and B. In addition thereto, plaintiffs claim that Martin G. Flaagan was indebted to Gunder O. Flaagan in an open book account aggregating approximately $ 2,900. Under plaintiffs' claim, therefore, and under the findings of the court in that connection, at the time of the death of Gunder O. Flaagan, Martin G. Flaagan owed Gunder O. Flaagan, in the relation of debtor and creditor, $ 3,743.

Prior to the death of Gunder O. Flaagan, said Martin G. Flaagan was indebted to various other persons, among them the defendants in this case, these appellants. All of the claims held by appellants were reduced to judgment, prior to the death of Gunder O. Flaagan, and were duly of record in Nelson county, North Dakota.

Upon the death of Gunder O. Flaagan, intestate, he left as a part of his estate, real estate located in Nelson county, North Dakota, worth many thousands of dollars, which real estate was all unencumbered. Martin G. Flaagan was one of several heirs to this property.

Upon the probate of said estate, the probate court attempted to charge off the distributive share of the said Martin G. Flaagan, which distributive share was found in the final decree to be $ 4,413.41, the indebtedness which had been due from Martin G. Flaagan to Gunder O. Flaagan, and upon the death of Gunder O. Flaagan to the estate of Gunder O. Flaagan, which indebtedness was found in the decree to be $ 4,709.11, and the probate court therefore attempted to exclude the said Martin G. Flaagan from participation in the distribution of said estate, for the reason that the indebtedness of the said Martin G. Flaagan to said estate exceeded the distributive share of the said Martin G. Flaagan, in said estate. The defendants, judgment creditors of the said Martin G. Flaagan, began proceedings to enforce their judgments against Martin G. Flaagan by having execution issued on such judgments, and levies made upon the one-seventh interest of the said Martin G. Flaagan in the real estate which constituted a part of the estate of Gunder O. Flaagan, deceased. One execution was actually levied upon the real estate and a sale thereon ordered, when the plaintiffs, who had come into the record ownership of such real estate, by successive conveyances from the other heirs, excluding Martin G. Flaagan, brought the pending action, asking for a permanent injunction restraining the defendants from attempting to collect said judgments against any interest of Martin G. Flaagan in said real estate, and further praying a decree quieting the title of such real estate in the plaintiffs, free from any interest or lien on the part of the defendants by reason of the said judgments against the said Martin G. Flaagan. The action was tried and the trial court found in favor of the plaintiffs and made findings of fact, conclusions of law, and order for judgment in favor of the plaintiffs, upon which order judgment was duly entered, and from which judgment defendants appealed.

The sole question upon this appeal, under the facts, therefore, is whether the indebtedness owing from Martin G. Flaagan to the estate of Gunder O. Flaagan is a prior lien upon the distributive share of Martin G. Flaagan in the real estate constituting said estate, as against valid judgments against the said Martin G. Flaagan, which judgments were in force and of record prior to the death of the intestate, and which, by force of the statute, became a lien upon any interest of the judgment debtor in real estate within the particular county, and upon which judgments, executions had been issued and levies made. The trial court held that the estate had a prior claim, as against the distributive share of the heir, for the payment of the debts due from the heir to the estate, to which prior claim the lien of defendants' judgments, together with the enforcement of the same by execution, was subordinate.

It is conceded that no action or proceeding was ever brought by or on behalf of the estate for the purpose of the collection of the indebtedness due the estate from Martin G....