Tyvand v. McDonnell
| Decision Date | 09 July 1917 |
| Docket Number | 1915 |
| Citation | 164 N.W. 1,37 N.D. 251 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Bottineau County, A. G. Burr, J.
Affirmed.
Judgment affirmed, with costs.
John H Kirk and Cray & Eaton, for appellant.
It is invariably held that debts contracted by the widow and heirs of a deceased person are not debts of the estate and cannot be enforced against the estate. Harkins v. Hughes, 60 Ala. 316; Hulbert v. Waller, 3 Colo.App. 250, 32 P. 985; Normand v. Barbin, 18 La.Ann. 611; Potter v. Potter, 64 Vt. 298, 23 A. 856; Carter v Tippins, 113 Ga. 636, 38 S.E. 946.
Coger & Nelson, for respondent.
The county court acting in its appropriate sphere in ordering an allowance for the maintenance of the family has exclusive jurisdiction, equal in degree to that of the district court and is a court of record, and its judgment becomes final, in the same manner as do the judgments of other and superior courts. No appeal was here taken, and the judgment in relation to the matter here involved became final. Joy v. Elton, 9 N.D. 438, 83 N.W. 875.
The county court had jurisdiction in this case, and its order is a sufficient and legal exercise of its power. Worner, Am. Law of Administration, 189; Re Lux, 100 Cal. 606, 35 P. 345; Dickinson v. Hendrickson, 122 Mich. 538, 81 N.W. 583; Huntley v. Denny, 65 Vt. 185, 26 A. 486; Simmons v. Byrd, 49 Ga. 285; Milner v. Vandivere, 86 Ga. 540, 12 S.E. 879; Cross v. Johnson, 82 Ga. 67, 8 S.E. 56; Shepard v. Stebbins, 48 Hun, 247.
The action is one to recover the balance on account for goods, wares, and merchandise sold and delivered by the respondent to the appellant. It appears that this matter having first come up for determination in the probate court of Bottineau county, after such determination of the probate court an appeal was taken therefrom to the district court of Bottineau county. It does not appear after the matter reached the district court that any regular pleadings were ordered filed nor issue formed in a formal manner, as should have been done. The matter was brought on by petition in the probate court, and after the appeal to the district court the matter was heard on the same petition. We will therefore state the facts of the case as they appear from the record, and thus be able to determine what is the issue involved in this action.
One John A. McDonnell died on or about the 10th day of January, 1903, in Bottineau county, North Dakota, possessed of the following described real estate in the county of Bottineau and state of North Dakota, to wit: The northwest quarter and the north half of the southwest quarter, and the northwest quarter of the southeast quarter, and the southeast quarter of the southwest quarter, all in section 26, township 159, range 74. At the time of his death he was also possessed of personal property of the value of $ 1,000. The value of the real estate was approximately $ 8,000 at the time the account in question was filed against the estate, and such real estate was shown by the inventory in the year 1903 to be worth $ 3,500. On the 27th day of February, 1903, Emma McDonnell was appointed as the administratrix of the estate of John A. McDonnell, who died intestate, and ever since has been and now is such administratrix. As such administratrix she gave a bond with sufficient sureties as required by law in the sum of $ 5,000 for the faithful execution of her duties as such administratrix. Between the 1st day of November, 1905, and the 30th day of November, 1906, it is claimed by James A. Tyvand that she purchased as such administratrix from said Tyvand goods, wares, and merchandise in the sum of $ 591.49, the claim for which against such estate was presented to said administratrix on the 28th day of March, 1907, and allowed by an indorsement in writing thereon by said Emma McDonnell, administratrix. On the 29th day of March, 1907, said allowance was confirmed and said claim approved by the Honorable John H. Kirk, then judge of the probate court of Bottineau county. Said Emma McDonnell was ordered to appear in the county court and account for the property which had come into her hands as such administratrix, and further notified that upon such accounting, if the petitioner for such accounting, who is this respondent, should show himself entitled to the payment of the said $ 591.49, a peremptory decree would be made ordering said Emma McDonnell, as such administratrix of the estate of John A. McDonnell, to make immediate payment of the said sum; and notifying the appellant further that the court would also authorize this respondent to bring an action upon the bonds of said administratrix against her and her sureties for the amount of said claim and interest thereon. Upon such accounting being had, the county court made an order that in the event of the nonpayment of the said sum of $ 591.49 and interest since March 28, 1907, the respondent might bring an action against the principal and sureties on the bonds and the undertaking of the said Emma McDonnell for the purpose of recovering from the said principal, Emma McDonnell, and her sureties upon the bonds, as such administratrix, the sum of $ 591.49, with interest thereon at the rate of 7 per cent per annum from March 28, 1907. An appeal was taken from such order to the district court, and, upon proceedings had in such district court, a judgment was ultimately entered, from which this appeal is taken.
It further appears that, in the course of the probating of such estate, notice to creditors under the statute was completed May 1, 1903. The same was filed on October 2, 1903, and an order was entered adjudging that due and legal notice to creditors had been given in the manner, for the purposes, and the period required by law and prescribed by the court. The judgment of the district court was substantially the same as the judgment of the county court.
It is sought in this case to charge the estate of John A. McDonnell, deceased, with a debt which did not exist at the time of his decease, but which it is claimed by Tyvand was contracted by the administratrix in her representative capacity about two years after her husband's decease. The owner of such claim, Tyvand, seeks to charge such estate with such claim on the theory that it is a proper charge on account of it being for necessaries furnished for the support of the family of the deceased, while the estate was being settled, and when such estate was solvent.
Section 8730, Compiled Laws of 1913, provides what debts are chargeable against the property of the decedent. Such section, after deducting the homestead exemption and personal property set aside for the surviving wife or husband and minor child or children, says that the remainder of such property shall be chargeable with the payment of the debts of the deceased, the expenses of administration, and the allowance to the family, and further provides that the property, both real and personal, may be sold as the court may direct in the manner prescribed by law.
Under § 8723 of the Compiled Laws of 1913, upon the death of either husband or wife, the survivor, as long as he or she does not again marry, may continue to possess and occupy the whole homestead as defined in § 5605 of the Civil Code. Such homestead shall not be subject to the payment of any debts or liabilities contracted or existing against the husband or wife, or either of them, previous to or at the time of the death of such husband or wife, so that the homestead, the northwest quarter of section twenty-six, township one hundred fifty-nine, range seventy-four, of the approximate value of $ 4,800, need not be considered as any part of the estate so far as the payment of debts are concerned. Section 8725 of the Compiled Laws of 1913 provides that there shall also be set apart absolutely to the surviving wife or husband, or minor children, all the personal property of the testator or intestate which would be exempt from execution if he were living, including all property absolutely exempt, and other property selected by the person or persons entitled thereto to the amount and of the value of $ 1,500 according to the appraisement, and such property shall not be liable for any prior debt of the decedent...
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