dissenting.—Appellant Mendenhall presented his claim against the estate of Mouillerat, and the same was approved by the administrator and duly allowed by the court. (Probate Practice Act, §§ 153, 154.) About one year thereafter, when the administrator presented his final account for settlement, certain other creditors of said estate set up a contest of appellant’s claim, on the ground that it was barred by the statute of limitations. The court sustained said objection, whereby appellant was denied payment of his claim out of the funds of said estate. The claim was for money alleged to have been paid out by Mendenhall, as surety for decedent, in a proceeding against decedent in the United States district court in the year 1885. The record of said court shows the proceeding, and that settlement was made; and the evidence undoubtedly establishes payment by Mendenhall, on behalf of decedent, as claimed. But it is contended that the record of said proceeding in the United States court does not, in itself alone, establish payment by the surety; and therefore it is contended that appellant’s claim would fall within the class barred by the lapse of three years.
*256The first proposition insisted on by appellant is that the due allowance of his claim by the administrator and the court having jurisdiction of said estate, as provided by law,- amounted to the establishment thereof in the nature of a judgment, and that said claim was not subject to be contested by other creditors of the estate at the time and in the manner pursued in this contest.
The question as to the effect of the allowance of a claim against an estate, as provided by the statute, appears to be one of considerable difficulty. Some authorities affirm that such allowance places the claim in the same status as a judgment (See 2 Black on Judgments, 641, and cases cited; also, California cases cited in appellant’s brief); and, if that conclusion is correct, such allowance cannot be disregarded or ignored, and another and independent contest set up against said claim. If the order of allowance is in the nature of a judgment, it would be necessary, in order to avoid such judgment, to follow it up by appeal, and obtain its reversal, or attack it by other direct action.
In support of the proposition that the allowance of the claim against the estate establishes it in the nature of a judgment, several provisions of the statute may be pointed to. Thus, it is provided that, after allowance in the manner prescribed, the claim shall be “filed in the probate court, and be ranked among the acknowledged debts of the estate, to be paid in due course of administration.” (Probate Practice Act, § 154.) Aud it is further provided that “a judgment rendered against an executor or administrator, upon any claim for money against the estate of his testator or intestate, only establishes the claim in the same manner as if it had been allowed by the executor or administrator and the probate judge, and the judgment must be that the executor or administrator pay in the due course of administration the amount ascertained to be due.” (Probate Practice Act, § 161.) This provision might be taken as bearing strongly in favor of the view contended for by appellant—that the proceeding resulting in the allowance of the claim was equivalent in its force to a judgment. Again, there are provisions of statute for the hearing of evidence by the probate judge, as to the merits of the claim, before allow*257anee (Probate Practice Act, § 156); and also for a reference of the claim for investigation through the agency of a referee. (Probate Practice Act, §§ 164, 165.) It seems, too, that the order of allowance, and the proceeding leading up to that order, are subject to rehearing on motion for new trial, as provided in sections 323 and 324 of the Probate Practice Act, and to appeal, as provided in section 445 of the Code of Civil Procedure. (See In re McFarland’s Estate, 10 Mont. 445.)
The tendency of all those provisions would seem to poiut to the conclusion that the final allowance of the claim of a creditor against an estate by the administrator and probate judge amounted to some thing more than a proceeding which could be ignored at pleasure, and leave the claim open to contest by any party interested and desiring to question it; and,, from a consideration of the statutes relating to this subject, and the cases in which this question has been discussed, I ant drawn to the conclusion that such allowance does establish the claim as against the collateral attack of all except the heirs and their representatives. This exception in favor of the heirs is made by statute, but does not appear to extend to others. The language is that “ all matters, including allowed claims not passed upou in the settlement of any former account, or on rendering an exhibit, or on making a decree of sale, may be contested by the heirs, for cause shown.” (Probate Practice Act, § 268.) This section undoubtedly holds the claim open to question by the heirs in a contest independently of the proceedings whereby it was theretofore passed upon and allowed by the court. And the language of that section seems to limit that privilege as one reserved to the heirs alone. If it was not the intention to so limit the privilege to set up another contest as to the claim after its allowance, why did the legislature so specifically declare that those matters were open to contest “by the heirs?” We have no doubt this is a wise and just provision in favor of the heir. Where an estate possesses sufficient assets to satisfy all demands, there is no motive to lead claimants to investigate, find evidence, and contest one another’s demands when presented for allowance, so as to reduce each claim to its proper proportions, or, if without merit, to cause its disallowance altogether’. (Beckett v. Selover, *2587 Cal. 215; 68 Am. Dec. 237.) If the claim, however, after allowance* is only open to contest by the heirs, as seems to be the intendment indicated by the language of the statute, it follows that the several creditors whoso desire must present their contest against demands of others when such demands are before the court for allowance. A contrary holding would, in effect, deny all force to the proceeding of the court whereby claims are investigated and allowed, and subject such proceedings to be disregarded at the pleasure of any creditor who wishes to introduce another contest, and occupy the attention of the court in trying the same. Such holding is contrary to the views of the court in Ryan v. Kinney, 2 Mont. 454, and, I think, is not in harmony with the theory of the statute providing the practice as to the investigation and allowance of claims. There appears to be ample provision made by statute to enable creditors to contest claims proposed against an estate, as the same come up for consideration and allowance; and it would seem that such would be the more' convenient and acceptable time for contest of individual claims than a subsequent time? long after the claim had been allowed and the administrator’s account is before the court for examination. The result of such holding is to keep the affairs of an estate unsettled indefinitely.
The provisions of section 267 of the Probate Practice Act, that any person interested in the estate may contest the administrator’s account, should not be so applied as to annul the force of other special provisions of statute in reference to claims of third persons against an estate. The administrator’s account contains numerous items besides accounts of third persons against the estate which have been allowed aud approved by the probate court. As to such other terms, the administrator’s account should be, and is, open to contest by auy person interested. But, as to claims of third persons against tire .estate, the statute has made special provisions for their presentation, contest, and adjudication, even to appeal from court to court. According to the holding of the majority of this court, such adjudication establishes nothing. It may be brushed aside by any person interested in the estate; and, ignoring that adjudication, although it had gone to the court of last resort, he may *259again open the contest when the administrator’s account is presented. Such a result is not according to the theory plainly visible in the statutory provisions, nor does it conform to the authorities on the subject, especially decisions of the supreme court of Montana, cited supra.
The accounts of third persons against the estate are not in fact the administrator’s account. Those accounts are independent of the administrator. He is not the one to prosecute them against the estate, nor to defend the matter of their allowance in case of contest of his account; yet the theory of the majority opinion in this case seems to be that, because the administrator’s account may be contested, the allowed accounts of third persons against the estate are thereby thrown open to contest as if they were the administrator’s accounts. The administrator would not be the supporter of such accounts; he should, and probably would, be the contestant at the proper time, and • until the account was established. Therefore, what difference would it make to him if third persons’ allowances were struck out of his account, unless he had paid the same on the strength of the allowance by the court? But observe the peculiar result of the holding in this case. If the administrator, having once contested a claim against his estate, even to the court of last resort, and has been defeated, and the claim established by such adjudication, the administrator can still say, according to the holding in this case—“That goes for nothing”—and, though the estate comprise millions, .lie may refuse payment, and, when the administrator presents his account, commence the same contest, and go through the courts with it again. Or defenses to claims against the estate may be set up by piecemeal—some when the claim is presented for allowance, and others when the administrator’s account is presented; some by one, and some by another/interested in the estate. Or, if defeated at the first trial, this need not be followed up by appeal or motion for new trial, as the statute provides, but the attack may be suspended until a more convenient time. Such are some of the peculi¿r results of the holding in this case. ■ ■
, The citations in the majority opinion neither support its reasoning n.or its conclusion. In the case of Estate of Loshe, 62 Cal. 413, the court* expressly decline to consider the point *260involved in the case here, saying: “It is not necessary to consider how far the allowance or approval of a claim resembles or gives the effect of a judgment.” The California court points to the statute of that state as authorizing the contest there under consideration. So, the case of Estate of Hill, 62 Cal. 186, cited in support of the majority opinion, is not in point, because the contest in that case was “by the heirs and distributees of deceased.” Likewise, the case of Weihe v. Statham, 67 Cal. 84, cited in support of the majority opinion, was an “ action by the heirs of William H. Hill,” etc.; and the court say in that case: “It has several times been decided that the allowance of a claim by the administrator and probate judge is not conclusive upon the heirs, but they may contest such allowance in subsequent proceedings of the probate court”; and the California statute and cases are there cited. The same rule would hold here by special provision of the statute, as we have pointed out. The case last above mentioned is the latest case cited from California, and it may be observed how carefully that court uses language to confine the contest at that stage of the claim to the heirs. One other case—Magraw v. McGlynn, 26 Cal. 431;—is cited for support of the majority opinion, but I fail to find any such case reported in the book. These citations illustrate how easy it is to cite cases as supporting a view, and also how deluded one would be in looking to the citations for confirmation of the point in question.
There is no warrant for the presumption asserted in the majority opinion, that the administrator and probate court would neglect the solemn duty, imposed by law upon them, of carefully investigating claims against the estate before allowance thereof; and, had I found reason to subscribe to the conclusion reached in this case by the majority, I should withhold concurrence in the observations which carry that imputation. If such abuse and negligence in relation to a sacred trust, as the opinion “doubts not is the most frequent occurrence in that court,” could be satisfactorily established by proper evidence, it would be a matter for legislative consideration. It is well known that in a judicial inquiry as to what the law is, such considerations are not pertinent, except as mere suggestions looking towards the expediency of a legislative change. *261But no such conclusion is warrantable as a mere presumption; and there is no showing that the probate courts in this state neglect the solemn duties imposed upon them by law and the nature of the trust confided to their care, nor was that a matter for investigation in the case. My investigation of this question has led to the belief that a statutory provision for vacating the order of allowance of a claim against an estate upon presentation of sufficient grounds, supported by affidavit, within reasonable time, such as that found in the Probate Code of Missouri, would be an improvement of our statute on this point. (See Kelley’s Missouri Probate Guide, § 309, p. 261.) There is probably more need for such a provision since the adoption of the constitution, giving our district courts original jurisdiction of all probate matters; for under the former system, if a claim was thought to be erroneously allowed against an estate, the whole question could be carried by appeal, for trial anew, into the district court. (Code Civ. Proc., §§ 445-58.) This gave time and opportunity to reopen the case, and correct errors on appeal. But those provisions have become obsolete through the changes made by the constitution.