ON PETITION FOR RE-HEARING.
Carmody, J.In this case the defendants have filed a petition for rehearing, urging, among other points, that the decision of the court filed herein, by necessary implication, holds that an order settling an administrator’s account can be collaterally impeached for other than jurisdictional reasons. In this they are mistaken. The final account of the administrator, as filed, and on which the notice of hearing was made, showed, as it should, that there was a balance of $8,376 in his hands for distribution to the heirs. On May 19, 1902, the day to which the hearing was adjourned, the administrator added to the said final account the following: “The attached vouchers show that $8,316 have been paid to above heirs since filing the report, leaving a balance of $60 to be divided in like proportions. Corrected 5-19-’02.” For the reason stated in the opinion this last had no place in the final account. On the same day, and afterwards, the county court of Walsh county made its final decree of distribution in this estate, in which it decreed and gave to the heirs $8,376 or $1,396 each, only $10 of which was ever paid to this plaintiff.
Section 8208 of the Revised Codes of 1905, as far as material here provides:
“Upon the final settlement of the accounts of the executor or administrator or at any subsequent time, upon the petition of the executor or administrator, or of any heir, legatee or devisee, the *96court must proceed to distribute the residue of the estate in the hands of the executor or administrator among the persons who are by law entitled thereto.”
Section 8211 of the same Code, as far as material here, provides:
“In the decree the court must name the persons and the proportions or parts to which each shall be entitled, and such persons may demand, sue for and recover their respective shares from the executor or administrator or any person having the same in possession.”
It is undisputed that the administrator did not obey the final decree, in that he failed to pay to the plaintiff $1,386 of her distributive share, which failure to pay is a violation of the final decree, and a breach of his bond; hence plaintiff can maintain this action, and the court should have directed a verdict in her favor for the said sum of $1,386. The order of the county court settling the final account relieved the administrator and his bondsmen from any subsequent liability to be incurred. The liability to pay the $1,396 was previously incurred, hence by that order the administrator and his bondsmen were not relieved from that liability, and, he having paid plaintiff but $10, the • defendants, his bondsmen, are liable to her for the balance of $1,386.
In their answer the defendants set up, as a defense, an order made by the said county court on the 26th day of July, 1902, discharging the administrator, G. R. Gullickson, from his trust, and releasing him and his sureties from all liability thereafter incurred. In the opinion filed in this case, the court says: “A complete answer to this contention is that the said discharge was made ex parte and without notice to the parties'interested'in said estate.” Defendants contend in their petition for rehearing that it was not an ex parte order; that the citation upon which the order allowing the final account was made and the final decree of distribution entered, cited the appellant to show cause why the administration of the said estate should not be closed and the administrator discharged. Section 8196 of the Revised Codes of 1905, as far as material here, provides : “If from any cause the hearing of the account or the petition and distribution be postponed, the order postponing the same to a day pertain is notice to all persons interested therein.” The citation was returnable on the 26th day of April, 1902, on which day an order was made postponing the hearing to May 19, 1902, on which day the order allowing the final account and the decree of the distribution were made. No further post*97ponement was had; hence the order discharging the administrator and releasing his sureties from liability thereafter incurred made on the 26th day of July, 1902, not being on a day certain to which the hearing was postponed, was made ex parte. The defendants contended that, even if the order was made ex parte, it was valid until it was vacated in a direct proceeding. Admitting this to be true, it does not help the defendants in this action, as the discharge at best only released the administrator and his sureties from any liability to be thereafter incurred, and, as hereinbefore stated, the liability to this plaintiff was incurred prior to that time.
122 N. W. 1008.In the original opinion this court says: “The so-called promissory note given by the administrator, Gullickson, tO' plaintiff’s husband, was not' a payment. A payment means a payment in money. If paid by promissory note, or anything else than cash, it must be accepted by the payee as payment. In the case at bar the so-called promissory note was not given to the plaintiff, but to her husband; neither she nor her husband knew its contents, and she never accepted it as payment.” Defendants, in their petition for rehearing, contended that no claim was made by them that the note referred to was given or received as payment, but that plaintiff could not retain the note and at the same time maintain this action. True, defendants did not. claim that the so-called promissory note was given or received as payment, but did and do claim that plaintiff could not retain Gullickson’s note and at the same time maintain this action. Plaintiff, the appellant herein, contended in her brief that the note was neither accepted nor received in payment, and this court sustained her contention. Defendants are not in a position to claim that plaintiff cannot retain Gullickson’s note, and at the. same time maintain this action; plaintiff could neither read nor write the English language, and did not know the contents of the so-called promissory note. Gullickson told her husband, when he handed it to him, that it was a paper to show how much was to come out of the estate; she never at any time waived any of the conditions of the final decree of distribution. The defendants have not in any way been prejudiced by her retaining the so-called note, and do not come within the provisions of section 5380 of the Revised Codes of 1905.
The petition is denied.
All concur, except Morgan, C. J., not participating.