If I were of the opinion that the jurisdiction of the probate court were so limited and circumscribed by narrow constitutional provision that it has no power whatsoever to make any order that might affect the enjoyment by rightful heirs at law, or legatees, of the avails of a life insurance policy taken out by the deceased and made payable to his personal representatives, his heirs or estate, I should be inclined to dissent from the opinion of Mr. Justice *Page 394 Christianson. It seems to me that the question as to whether or not the minors are estopped on account of the knowledge and participation of their guardian in the proceedings in probate court depends in large measure upon the jurisdiction which the probate court was seeking to exercise and upon whether or not it was wholly exceeding its lawful jurisdiction. In determining whether an estoppel exists, there is a vast difference between action that is wholly without jurisdiction and action that is merely erroneous or irregular but within the admitted jurisdiction of the court.
Our statute has long provided that the avails of insurance contracts, such as that here involved, shall be inventoried and distributed to the heirs or the heirs at law of the decedent. Laws 1897, chap. 111; Rev. Code 1905, § 8083; Comp. Laws 1913, § 8719; Sess. Laws 1927, chap. 225. It seems to me that this requirement of orderly administration is appropriately prescribed as a step in the probate proceedings where the whole of the estate of the deceased will be passed to those who are lawfully entitled. The fruits of a life insurance contract, which had been entered into by the deceased and for which he had furnished the consideration, are as legitimately a part of his estate for purposes of administration as the cash surrender value would be a part of his estate in bankruptcy were he living and bankrupt. It seems idle to say that, since these avails in the one case go to those answering to the statutory description of beneficiaries by virtue of appropriate designation in the contract, they are no part of the estate for purposes of administration. Where are the facts to be determined? The money will not find its own way to the rightful recipient, particularly in case any doubt arises as to his right. To suggest, as has admittedly been done in some of our prior decisions, that a statute cannot constitutionally give recognition to the right of the beneficiary to take the avails free of debts of the decedent and at the same time provide for their being inventoried and distributed in the probate court, involves a negation of the rightful powers of that court that, in my judgment, must remain a perennial source of difficulty and embarrassment. Insurance moneys may be passed to a class of beneficiaries such as is named in the statute (Compiled Laws 1913, § 8719), free of debts of the deceased insured, without violating any constitutional provision. State Const. § 208, Farmers State Bank v. *Page 395 Smith, 36 N.D. 225, 162 N.W. 302. Provisions for such exemptions, if they be considered exemptions, are general and are quite uniformly upheld. (25 C.J. 72.) See Le Blanc's Succession,142 La. 27, L.R.A. 1917F, 1137, 76 So. 223. In case a suit becomes necessary to collect on the policy, is not the administrator or executor the proper party to institute the action? If he does institute the action, why be concerned about whether he institutes it as administrator or executor or as trustee; and whence is derived the right to appear in the latter capacity at all? If the avails are paid to the administrator, would they be protected in his hands by his official bond as administrator? It could hardly be so contended if the probate court which exacted the bond had no jurisdiction whatsoever regarding such fund. If upon proof of heirship in probate court a controversy should develop as to legitimacy, would the determination of that controversy in probate court adjudicate the matter for purposes of claiming avails of life insurance? If the administrator, appointed by a court having no jurisdiction whatsoever with respect to the fund, be a mere conduit for passing money from the insurance company to the beneficiaries, why should a beneficiary who is not consulted and who has not received his portion be precluded from collecting his portion from the insurance company? How can the insurance company claim protection against such a claim by showing payment into a court of limited jurisdiction, one without jurisdiction over the particular fund, or payment to an officer of that court?
This court has decided that the provisions of the statute governing succession and inheritance control the distribution of the proceeds of policies payable to the estate; that is, that they do not necessarily pass in equal shares to all falling within the definition of heirs; and that the terms "heirs" or "heirs at law," as used in § 8719, do not mean those who in some circumstances would inherit from the decedent but those who in view of the condition of his estate, the insurance included, are entitled to participate. See Maixner v. Zumpf, 51 N.D. 140,199 N.W. 183. Sometimes it is part of the estate and sometimes, we seem to have thought, we must say it is not. It seems to me the time has come when we should say that the previous expressions of this court to the effect that the avails of such life insurance contracts are no part of the estate of the decedent and that the probate court was *Page 396 without jurisdiction to make any order or decree with reference thereto are erroneous and are founded upon a misconception of the constitutional scope of the jurisdiction of that court. The expressions referred to, while not necessarily resulting in erroneous decisions in the cases in which they were employed, have entangled the subject of the disposition of the avails of life insurance contracts covered by § 8719 in a maze of technical refinement from which it will not be readily extricated until it is frankly determined that the probate court has original jurisdiction of every question that may arise between those claiming the avails by the operation of the statute and that its judgment upon such questions, unappealed from, is final.
Believing that the court was not acting beyond its jurisdiction, I feel that the heirs are now precluded from asserting a claim to the proceeds of the insurance policies, even though they were used in a manner inconsistent with their legal rights. I therefore concur in the affirmance of the judgment.