Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1914-04-18

Is plima facie y debt owing by the
estate, and Its amount, for which the
property shall respond, IL 1t be deter
mined to have been conveyed In fraud
OF creditors and the estate be insolv-
ent.
% Where the decedent leaves no
estate, lout leaves debts unpaid, and
where property has ibeen transferred
shortly before his death nv frandu.
lent conveyances to avoid payment
or claims or administration Of his
estate, and where no personal repre-
sentative has been appointed. the or
ger OF proceedings to enforce pay.
mentS OF claims is by statute intended
to be: (a) A petition by the cred
ttor for administration, reciting his
claim to establish his interest or
right to petition; (b) the appoint
ment thereon OF an admins traitor;
(c) giving Of usual notice by the adj
mlnistratOr to present claims within
the statutory period; Ia present
ment 10y the creditor, who petitioned
for administration, of his verified
claim to the administrator, and its
allowance and approval by the reb-
resentatiye and the court; (e) suit by
the administrator to cover under
Sec. S173, for the benefit of those
creditors whose claims shall Ibe an
proved by the county Judge in usuat
course, the property. so fraudulently
conveyed, and with may thus be hello
subject to administration for the pay.
ment of claims to, he established in
county court.
(S) The district court. sustained a
demurrer to a plea of payment and.
rejected evidence tending to rov
full payment of the claim approved
ny the county court and as; such the
basis of this action, it being the sole
claim made against the estate in ad-
ministration proceedings. Held prop
er, the district court having no iuris-
diction to entertain a joinder of is
u or receive evidence thereon of
payment. The approval by the coun.
ty court, eve though ex parte, is !.
prima facie determination sufficient
under the statute to furnish q basis
for the equitable action, and as such
conclusive upon the district court up
on the question of debt.
Original Jurisdiction.
G) By Sec. Ill of the state con-
stftution the county court shall have
exclusive original jurisdiction in pro-
bate and testamentary matters, the
appointment CT administrators and
guardians the settlement of the &C
counts of executors, administrators
and guardians" This constitutional
provision confers upon the, county
court exclusive original Jurisdiction
to. determine and enter Judgment up
OH the validity of claims against es-
tates Of decedents, and the district
court has no jurisdiction to pass up
on the validity of. tho debt Of estates
to claimants other than appellate
jurisdiction, and therefore, the dis.
trict court in the equitable action has
no jurisdiction to determine or pass
upon tho validity Of the claim in
question.
10) Neither the appointment Of
the administrator, nor the appruval
the county judge of claimants
claim against tho estate, afford an.
opportunity 10 litigatc the validity Iof
hia Claim or constitute. psst agains.
this grantee Of property fraudulentlS
conveyed, an adjudication of the val
idity of the debt, even though the
grantee participated in q hearing had
for such purpose. The law does not
contemplate that the validity OF
claims shall he litigated or prefer
ence in establishment of claims al
merely on hearing on the pc
titiOn for administration or on pro-
ceedings had on approval of this
claim. The approval of a claim on
It's presentation is an ex parte mat
ter affOrding no opportunity to con
test and from which approval there
is no appeal allowed.
Probate Procedure.
Q1) Probate procedure cOnteln-<
that claims allowed by the ad.
and the county court
shall not be fully Irrigated on presen.
tation for such allowance, but the
validity Of a claim so allowed may he
tried on the hearing to he had on
the personal representatives. nc
counting, OF upon his application to-
scG property, Trad on notice, from
any of which an appeal from the
Judgment passed by the probate court
may be taken, on the items ofSthe &C.
count thus litigated, to the Hdistrict
court. and there retired. An appeal
Is also allowed from a claim estab-
lished in county court by the con.
Of the report Of a referee
appointed by consent, and from which
an appeal to the district court may
be taken. The district court, on such
appeal, acts as an appellate tribunal,
judgment to be entered under
its order in the probate court
Q2) This equitable action in dis.
trict court is but anciflary to and
in aid of the administration proceed
lngs in county court, wherein the
may hereafter, in the course
Of administration, mterpose the de-
tense of payment sought to be urged
in this district court action, and up
On which the judgment herein enter.
ed is not res adjudicata as 10 fur
lher litigation of the debt in county
court.
(13) Pending trial on the merits
Of the claim, that may he had on al,
accounting, of the administrator, uE-
der Sec. 1923. before he shall take
Of any property in the graa-
ices possession, the court properly
execution of Judgment or sale
Of property until final judgment in
county cojrta assto the validity: