Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1900-04-18
uart of this claim -$25OO.0O
To interest on same to December
II 1898 - 10000


statutory affidavit. The appellant asks
for decree of sale Of the land in the us
ual manner the proceeds to be applied to
the discharge Of the amount due, and for
the usual relief in proceedings of fore
closure, waving recourse to any other
property of said deceased other than the
properly described in the mortgage.
The important question to be consid-
cred is made by the claim of the respon
dent that no action can be maintained
against the rsprese NATIVE of deceased
person to foreclose mortgage upon any
property of the deceased, under the stat
utes of this State regulating the settle
ment Of the estates of deceased persons,
unless the same has been presented to
such representative within the time and
in the manner prescribed by said statute.
In support Of this contention it is argued
that the statute giving to the representa-
tive of deceased person possession and !
control ot all the property of the intes- !
tate, the right to maintain actions to re- /
cover the possession Of all the real estate
of the deceased, and damages thereto, tho
right to the rents, issues and profits Of
the same, and the imposed duty to keep
the same in reasonable repair, the duty |
to inventory and appraise all the estate
of the deceased and his many other du |
ties regarding accounting. sale of prop
erty, order Of the payment OF debts,
shows that such Was the intention OF the
Legislature in the passage Of the Act.
While tho question is not new one,
4 81 l,<, Af.,tf kn
decision Of the question between the
courts Of the various States, such conflict
doubtless arising from the form Of the
various statutes, CT the language used
therein, yet SO far this court is con-
cerned, because Of the recent passage of
the Act regulating the settlement Of es-
tates of deceased persons, the question is
comparatively new, and just and rea
ssnable determination involves the jul
dicial construction of the Act, aided in
some respects by the opinions of ether
courts upon statutes in many points sim
liar to our own where such opinions seem
to be based upon sound logic and rea-
son.
Briefly stated. by the requirements of
said Act "AI persons having claims
against the deceased must within a GER
tain time file the same with necessary
vouchers with the clerk of the court: if
the claim be not filed within the time
specified 1T shall be forever barred" 1t
is further required that such claim shall
pe supported by affidavit, the form and
contents OF which are fully set ont in th e
Act. 1t is made the duty of the admins
i. 4
thereon his rejection or allowance of such
claim and within limited time there
after, he is required to present all claims
allowed by him to the District Judge for
his approval or rejection. Quoting from
the Act it is further provided that "all
claims, when approved by the judge shall
be ranked among the acknowledged
debts Of the estate, to be paid in due
course of administration. If the claim
be founded upon bond, bill mote, or other
instrument, the original instrument need
not be filed, but copy with the endorse
ment may be attached to the statement
of the claim and filed Herewith. and il
the claim be secured by mortgage or
other evidence Of lien, it shall, or certi
fed copy from record, be attached to
the claim and filed Herewith"
l Compiled Laws, 1900, Secs. 1898 tc
1896
, A mortgage is something more than
'claim against the deceased 1t is
lien upon the specific property described
theroin, carrying with it the sht in cast
of default Of action to foreclose and by
such proceedings have applied to it's dis
f charge the proceeds arising from the salt
of the specific property. The Distric
J Judge acting in probate matters undo
the sections above cited has no power. %
| authority to determine the question Q
t the validity or invalidity of the lien o
. the m ertgage, or to make any decree 0
: order for the sale Of the laortgaged prem
Uses upon the presentation of the claim
: as defined in the statute. His allowanc
: or rejection Of the claim does not deter
e mine the validity Of the lien created b,
= the mortgage. 1t is not sufficient to sa,
: that the Act prescribing the order of tn
e payment of the debts of the decedent col
!, fers authority upon the District Judge t
: determine in this manner the validity o
e the mortgage lien. The statute makes
II OlSL10ctlOn between liens OF mortgage
|. and "claims against deceased persons.
= "If the claim be founded upon a bono
It BILL note, or other instrument, the orig
: inal instrument need not be filed, but
: copy with all endorsements may be a
n tached to the statement Of claim an
d filed Herewith, and if the claim be s.
t. cured by mortgage or other evidence
1t lien, it shall, or certified copy from
e record, be attached to the claim and file
$ Herewith I'D. 1885,
D That the Legislature did not inten
d that the rights of the mortgage and IL
2: validity Of the mortgage lien should
of determined in the summary manner pr
% scribed by the statute is not only appa
Of ent from these provisions OF the Act, b.
RS also from the subsequent section provi
ing that Wien any sale is made by an a
s. ninistrator, pursuant to the provision