80

79

probate. An executor and trustee under the will may appeal from an order of the probate court directing them to pay out funds of the estate.s0 An executor may appeal from a judgment of the probate court construing the will and assigning the property to a devisee.1 A foreign consul may appeal from an order appointing an administrator of the estate of one of his nationals.82 Only a party aggrieved by it can question on appeal a specific provision of a decree of distribution.83 An executrix of the estate of a husband of an incompetent person has been held not entitled to appeal from an order appointing a guardian for such incompetent.84 A person liable under the statute for death by wrongful act has been held not entitled to appeal from an order appointing an administrator to prosecute an action against him.85 Whether a surety on a bond of a representative may appeal from an order settling the account of the representative is an open question, though it has been strongly intimated that he may. An administrator appointed in another state, on the estate of a person there resident and deceased, may appeal from an order of the probate court here appointing an ancillary administrator. A surviving spouse may appeal from an order allowing a will though she has renounced the will.88 A party entitled to appear and object to the probate of a will, but who does not so appear, may appeal from an order admitting the will to probate and contest its probate in the district court. 89 An heir may appeal though he did not appear and take part in the proceedings. If he dies after the entry of an order and before the expiration of the time allowed for an appeal a special administrator may perfect an appeal within such time. Prior to Laws 1903, c. 27, the statute provided that an appeal could only be taken by a party aggrieved who appeared and moved for or opposed the order or judgment appealed from, or who, being entitled to be heard. thereon, had not due notice or opportunity to be heard."1

87

59. Same-Who may appeal from an order allowing or disallowing a claim-One not "interested" in the estate cannot appeal." The right

79 Burmeister v. Gust, 117 Minn. 247, 135 N. W. 980.

80 State v. Probate Court, 133 Minn. 124, 155 N. W. 906, 158 N. W. 234.

81 Empenger v. Fairley, 119 Minn. 186, 137 N. W. 1110.

82 Austro-Hungarian Consul v. Westphal, 120 Minn. 122, 139 N. W. 300.

83 Casey v. Brabeck, 111 Minn. 43, 126 N. W. 401.

84 Edgerly v. Alexander, 82 Minn. 96, 84 N. W. 653.

85 In re Hardy's Estate, 35 Minn. 193, 28 N. W. 219.

86 Pierce v. Maetzold, 126 Minn. 445, 148 N. W. 302.

87 Martin v. Gage, 147 Mass. 204, 17 N. E. 310.

88 Dexter v. Codman, 148 Mass. 421, 19 N. E. 517.

89 Schleiderer v. Gergen, 129 Minn. 248, 152 N. W. 541.

90 Sheeran v. Sheeran, 96 Minn. 484, 105 N. W. 677.

91 In re Hause, 32 Minn. 155, 19 N. W. 973; In re Brown's Will, 32 Minn. 443, 21 N. W. 474; Sheeran v. Sheeran, 96 Minn. 484, 105 N. W. 677. See State v. Bazille, 81 Minn. 370, 84 N. W. 120; Rong v. Haller, 106 Minn. 454, 119 N. W. 405. 92 Semper v. Coates, 93 Minn. 80, 100 N. W. 663.

to appeal under section 7490, subd. 4, G. S. 1913, by creditors, devisces, legatees, or heirs, is, by section 7491, subordinated to the general right of appeal given the representative of the estate. It is only when the representative declines to appeal that the right extends to the creditors and heirs. The legislative intent, in enacting section 7491, G. S. 1913, was to give the right to appeal from the allowance or disallowance of a claim against the estate of a decedent, first, to the representative or the interested creditor, but, in the event that the representative, after request, declines to appeal from the allowance or disallowance of a claim, then and in that event to extend the right to the creditors, heirs, etc., in general. The fact that appellants appeared in the probate court and opposed the allowance of the claim, does not entitle them to appeal; the representative not having declined to appeal.93 A payee of a note given for the benefit of another has been held creditor within the statute and entitled to appeal. Proof of the fact of the refusal of the representative to appeal need not be made prior to appeal, but may be made at any time when the fact is called in question.95 Objection that an appellant had no right to appeal to the district court cannot be made for the first time in the supreme court.9

94

60. Dismissal of appeal—An appeal may be dismissed by the district court for want of jurisdiction.97

98

61. Time of taking appeal-An appeal from an order, judgment or decree must be taken within thirty days after notice thereof; and in the absence of notice, within six months of its entry. The thirty days begin to run from the time of written notice of the order, judgment or decree. When no such notice is given an appeal may be taken at any time within six months from the entry of the order, judgment or decree. The burden is on the party moving to dismiss an appeal, which it is claimed should have been taken within thirty days, to show the service of such notice of the order, judgment or decree." The notice to limit the time of appeal, provided by G. S. 1913, § 7492, must be in writing and served on the aggrieved party by the adverse party. The notice given by the probate judge under G. S. 1913, § 7233, does not limit the time of appeal.1

62. Mode of taking appeal-Time-Notice-Bond-Statute-No appeal shall be effectual for any purpose unless the following requisites

93 O'Brien v. Murphy, 136 Minn. 327, 162 N. W. 356.

94 Lake v. Albert, 37 Minn. 453, 35 N. W. 177.

95 Schultz v. Brown, 47 Minn. 255, 49 N. W. 982.

96 McAlpine v. Kratka, 92 Minn. 411, 100 N. W. 233.

97 Capehart v. Logan, 20 Minn. 442 (395, 401).

98 G. S. 1913, § 7492. See, under former statutes, Auerbach v. Gloyd, 34 Minn. 500, 27 N. W. 193; In re Charles' Estate, 35 Minn. 438, 29 N. W. 170.

99 Knutsen v. Krook, 111 Minn. 352, 127 N. W. 11; Timm v. Brauch, 133 Minn. 20, 157 N. W. 709.

1 Timm v. Brauch, 133 Minn. 20, 157 N. W. 709.

are complied with by the appellant within thirty days after notice of the order, judgment, or decree appealed from:

1. The appellant shall serve a written notice upon the adverse party, his agent or attorney who appeared in court, and, when there has been no appearance, by delivering a copy of such notice to the probate judge for such party. Such notice shall specify the order, judgment, or decree, or such part thereof as is appealed from, be signed by the appellant or his attorney, and be served in the same manner as notices in civil actions, and, together with proof of service thereof, be filed in the probate court.

2. In case any person other than the representative appeals, he shall execute a bond, with sureties, to the judge, conditioned that he will prosecute his appeal with due diligence to a final determination, pay all costs and disbursements, and abide the order of court therein. But no appeal from an order, judgment, or decree shall be taken after six months from the entry thereof.2

63. Notice of appeal-The notice of appeal must be in writing and specify the order, judgment or decree, or such part thereof as may be appealed from.3 Where, upon the refusal of a representative to appeal, a creditor, devisee, legatee or heir appeals from the allowance of a claim against the estate, the notice of appeal should be to the effect that such creditor, devisee, legatee or heir appeals and be signed by him. A notice of appeal is to be liberally construed. A notice of appeal from an order admitting a will to probate may be served on the attorney of the proponent of the will. Service of notice of an appeal from a final decree of distribution on the attorney of an executor has been held sufficient. Formerly an amendment of a notice was expressly prohibited. Under a former statute a notice of appeal was held equivalent to an "application" for an appeal.9

64. Bond-In case any person other than the representative appeals he must execute a bond, with sureties, to the judge, conditioned that he will prosecute his appeal with due diligence to a final determination, pay all costs and disbursements, and abide the order of court therein.10 If the condition of a bond substantially covers the provisions of the statute, and secures to the respondent all that the law designed for him, it is sufficient, though not in the exact words of the statute. The fact that a bond is executed by only one surety does not go to the jurisdiction

2 G. S. 1913, § 7492.

3 See § 62; Foster v. Gordon, 96 Minn. 142, 144, 104 N. W. 765.

4 Schultz v. Brown, 47 Minn. 255, 49 N. W. 982.

5 First Unitarian Society v. Houliston, 96 Minn. 342, 105 N. W. 66.

In re Brown's Will, 32 Minn. 443, 21

N. W. 474.

7 Rong v. Haller, 106 Minn. 454, 119 N. W. 405.

8 McCloskey v. Plantz, 76 Minn. 323, 79 N. W. 176.

9 Lake v. Albert, 37 Minn. 453, 35 N. W. 177.

10 See § 62.

of the district court over the subject-matter of the appeal, but is a mere irregularity, which the respondent may waive, or which the district court may allow to be remedied by amending the bond or filing a new one. An undertaking is sufficient.12

11

65. Return to district court-Statute-Upon filing such notice of appeal and proof of service, the probate court shall forthwith make and return to the district court a certified transcript of all the papers and proceedings upon which the order, judgment, or decree appealed from is founded, together with copies of the order, judgment, or decree, the notice of appeal with proof of service thereof, and the bond. The district court, when necessary, may require a further or amended return.13 The district court acquires jurisdiction of the subject-matter of the appeal when the return is filed therein. Subsequent proceedings are not jurisdictional.14

66. Effect of appeal in suspending order, judgment or decree-Statute -Such appeal shall suspend the operation of the order, judgment, or decree appealed from until the appeal is determined or the district court shall otherwise order. The court shall have discretionary power, for cause shown, to require the appellant to give further security for the payment of damages which may be awarded against him in consequence of such suspension, in case he fails to obtain a reversal of the order, judgment, or decree so appealed from. But nothing herein contained shall prevent the probate court from appointing special administrators or special guardians, or to prevent special administrators or guardians appointed prior to such appeal from continuing to act as such.15 An appeal from an order admitting a will to probate does not affect an order appointing an executor unless an appeal is also taken from such order.16

67. Placing cause on calendar of district court-Notice of trial-Statute-Upon appeal the cause may be brought on for trial by either party on eight days' notice, which shall be served upon the attorney of the adverse party, or, if he have none, shall be deposited for him with the clerk of the district court. On or before the first day of the term for which the cause is noticed, the appellant shall cause it to be entered on the calendar; otherwise the appeal shall be dismissed. When placed on the calendar, the cause shall be tried and determined in the same manner as if originally commenced in such court. The district court

11 Riley v. Mitchell, 38 Minn. 9, 35 N. W. 472.

12 In re Brown's Will, 35 Minn. 307, 29 N. W. 131.

13 G. S. 1913, § 7493. See, under former statute, In re Post's Estate, 33 Minn. 478, 24 N. W. 184 (under former statute appeal on questions of law alone was tried in district court on the record and

not de novo as at present-nature of return under former practice).

14 Hintermeister v. Brady, 70 Minn. 437, 73 N. W. 145.

15 G. S. 1913, § 7494. See, prior to statute. Dutcher v. Culver, 23 Minn. 415. 16 Foxter v. Gordon, 96 Minn. 142, 104 N. W. 765.

17 G. S. 1913, § 7495.

may relieve an appellant from his default in not having the cause placed on the calendar, and the statutory requirement may be waived by the attorney of the respondent.18

68. Trial in district court de novo-Pleadings-Jury-Practice-Statute-The trial in the district court is de novo. The statute provides that "when placed on the calendar, the cause shall be tried and determined in the same manner as if originally commenced in such court." The conclusions reached by the probate court are immaterial.19 The question in the district court is not whether the determination of the probate court was right upon the record made in that court, or upon the evidence then obtainable, but whether the same order or judgment would be proper upon the record made and the evidence received in the district court.20 New facts developing after the hearing in the probate court may be received in evidence on the trial in the district court if relevant and material. A decree of the district court in another suit, involving issues over which the probate court had no jurisdiction, and entered during the pendency of the appeal, may be received in evidence, if pertinent to the issue.21 Formerly an appeal was allowed on questions of law alone and such an appeal was determined in the district court on the record of the probate court and not de novo.22 The statute provides that: "If the appeal be from the allowance or disallowance of a claim or counterclaim, the district court, on or before the second day of the term, shall direct pleadings to be made up as in civil actions, defining the issues to be tried. Such appeal shall then be heard and tried in the same manner as other issues of fact are heard and tried in such court. All other appeals shall be tried by the court without a jury, unless the court orders the whole issue or some specific question of fact involved therein to be tried by jury or referred." 23 The complaint in the district court must be based on the same claim that was presented to the probate court, but a variance as to the particulars of the claim is not fatal. It is sufficient if the same matter or transaction is presented.24 A claim on an express contract may be changed to one on an im

18 Hintermeister v. Brady, 70 Minn. 437, 73 N. W. 145.

19 G. S. 1913, § 7495; Washburn v. Van Steenwyk, 32 Minn. 336, 355, 20 N. W. 324; In re Mill's Estate, 34 Minn. 296, 25 N. W. 631; Strauch v. Uhler, 95 Minn. 304, 104 N. W. 535; Turner v. Fryberger, 99 Minn. 236, 107 N. W. 1133, 109 N. W. 229: Swick v. Sheridan, 107 Minn. 130, 132, 119 N. W. 791; First Nat. Bank v. Towle, 118 Minn. 514, 521, 137 N. W. 291; Benz v. Rogers, 141 Minn. 95, 169 N. W. 477; Lipman v. Bechhoefer, 141 Minn. 131, 169 N. W. 536.

20 Benz v. Rogers, 141 Minn. 93, 169 N. W. 477.

21 Benz v. Rogers, 141 Minn. 93, 169 N. W. 477.

22 In re Post's Estate, 33 Minn. 478, 24 N. W. 184. See McCloskey v. Plantz, 76 Minn. 323, 79 N. W. 176.

23 G. S. 1913, § 7496.

24 Stuart v. Stuart, 70 Minn. 46, 72 N. W. 819; Mason v. Savage, 141 Minn. 346, 170 N. W. 585 (proposed complaint held properly stricken out on the ground of departure from the claim filed in the probate court). Savage v. Minnesota