This is an appeal from a judgment of the district court of McLean County in a proceeding appealed to that court from the county court. The judgment settled and approved certain items in an
On December 20, 1906, Sakarias Markhus contracted for the purchase of a half section of land from Karl Klein (south half of section 3, township 143, range 81, McLean county), agreeing to pay therefor $4,000 with interest at 8 per cent, payment to be made by delivery of half the crops each year on or before the 15th of November. At the time the contract ivas made, the title to the land was in one Charles E. Sanborn, but in October, 1912, he conveyed it to August E. Johnson, who was a partner of Klein in the real estate business, subject to a mortgage of $2,500 and subject to the Klein-Markhus contract, Johnson assuming the mortgage and contract obligations. Markhus lived on the land and farmed it until October 19, 1914, when he died, having at that time paid the interest and approximately $1,000 on the purchase price. Shortly after the death of Markhus, Johnson petitioned for letters of administration, to be issued to O. B. Wing, and on this petition Wing' was appointed administrator on December 7, 1914, with Johnson and J. IT. Olsen as his bondsmen. Wing is a farmer whose farm is adjacent to the Markhus farm. The inventory and ap-praisement, dated March 1st of the’ following year, showed the equity in this half section of land had an appraised value of $380 and the personal property a value of $1,723.53, of which $1,276.63 was listed as cash. It not being possible to provide for the prospective claims against the estate and to pay up the land contract, nor possible to rent the land on terms whereby half the crop would be available for application on the contract, an oral arrangement was made between Johnson and Wing whereby one-fourth the annual crops would be applied on the contract. Johnson was an officer in the First National Barde of Washburn. Wing carried his personal account there. lie also carried there an account as administrator of the Markhus estate. All moneys coming to him as administrator, including the proceeds of crops, he deposited in the latter account, and out of this account he paid some
For some years prior to January 1, 1931, the petitioner, Miller, was county judge of McLean county. Neither during his incumbency in that office nor before, was any account filed by the administrator. On December 29, 1930, just before- retiring from the office, Miller wrote to the heirs of the deceased, who lived in Norway, advising -them that he had been county judge for ten years, that he was retiring from the office, noting the fact that the estate of the deceased was not closed, requesting them to sign an enclosed power of attorney, and stating he would see they got their share of the estate. He advised them that there was a move to close the estate and make distribution and that if he did not get the power of attorney before the hearing it might be tod
“Power of Attorney
“Know All Men By These Presents that I - of -, Norway, have appointed P. II. Miller, of Washburn, N. D., U. S. A., as my true and lawful attorney in fact with full power and authority to appear, sign, waive, and make full settlement for me in the estate of Salarias Markhus, deceased.”
On February 5, 1931, Miller petitioned that the administrator be required to. file his account in court and that letters of administration be issued to him, Miller. Thereafter, in August, 1931, the same petitioner filed another petition, predicated partially lipón a report filed by the administrator, and asked that the administrator show cause why he should not be removed, the letters revoked, and again prayed that, the petitioner be appointed in his stead. In November, 1931, objections were also filed to the final account of the administrator, and the request for his removal was renewed. On November 6, 1931, the, county court made an order finding, among other things, that the administrator had received the sum of $9,387.49 and expended $6,313.34; that there remained in his hands a receiver’s certificate for the deposit in the First National Bank of Washburn in the sum of $2,626.68 (this was after crediting a 10 per cent dividend) and $447.47 in cash; and that there were unpaid claims of $508.32 and unpaid costs of administration of $430.13.
The petitioner’s objections to certain items in the account were overruled. We will refer briefly to the principal items. One shows an expenditure of $417.75 to the First National Bank of Washburn to pay notes of the deceased. The court held the notes to represent debts justly due and overruled the objection which was made on the ground that no claim was presented to the administrator. An expenditure of $561.95, for funeral expenses, doctor and hospital bills, threshing, labor and hauling crop in 1914, was objected to on the ground that there were no itemized proofs o'f claim filed. The objection was overruled, the
The administrator was seventy-two years of age at the time of the trial and he did not attempt to justify, as of course he could not, his handling of the affairs of the estate in other than a prudent business manner. He professed, however, to have handled them as well, at least, as he had handled his own affairs. He has been honest and thrifty, but in business matters he should have been more self-reliant. His evidence shows that he is desirous of continuing as administrator only to the end that the affairs of the estate may be straightened out in the best manner possible. Some of the unpaid creditors expressed the desire that he be permitted to continue.
The judgment of the district court is attacked here on the ground that the powers of attorney under which the petitioner acted in instituting the proceedings in probate court were not properly authenticated so as to entitle them to be admitted in evidence; that if properly admitted they were not broad enough to enable the petitioner to institute this proceeding in his own name, or to take an appeal from the probato court; that certain of the findings with reference to the money received by the administrator are erroneous and not supported by the evidence; and upon other grounds to which it will be unnecessary to refer.
The record shows that the powers of attorney wore introduced in evidence over an objection as to the sufficiency of the foundation. There were four such powers. Three of them purport to have been executed before witnesses and one to have been acknowledged before, or the signature verified by, a judicial officer in Norway. There was no proof of the handwriting of those who appear to have executed the powers, nor any proof of the handwriting of the purported witnesses and no testimony from the witnesses or others as to the execution of the documents. Neither was there any proof that the one power had been acknowledged before a notary public of Norway or before a judge, clerk, register, or commissioner of a court of record of such country. Comp. Laws 1913, § 5566. It is not enough that a document appear to have been executed or acknowledged with the requisite formality. It must be shown to have been actually so executed. The courts of
It follows that this error vitiates the entire judgment of the district ■court, and that the cause must be remanded with directions to dismiss the appeal.
However, inasmuch as the estate is not closed, and inasmuch as we have had occasion to carefully examine the record in the county court and in the district court, we deem it proper to call attention to what .appear to be some obvious errors in the account of the administrator in charging himself with moneys received. The account,' together with the evidence in this record, shows that the administrator relied very largely upon the record of the deposits in the bank. These deposits ■are not questioned and it is not suggested that the administrator rer ceived any money belonging to the estate that he did not so deposit. 'The last two items on the account that entered into the total of $9,204.87 are February 2, 1921, $416.46 and April 24, 1923, $448.67. There is no record that these amounts were ever received by the administrator or that they were ever deposited in the bank. These figures were apparently placed in this column by mistake. They exactly correspond with two items which are shown to have been expended out of the bank account as payments on the land contract. Thus, the admin
Another error: Plaintiff’s exhibit 8 is a memorandum showing balances due, interest computations and payments made on the land contract, and the status with regard to the first mortgage from July 12, 1920, to January 11, 1925. On the back of this memorandum is the following item: “Paid March 1, 1922, $158.15.” Apparently, this item was inadvertently omitted from the list of payments on the land contract and, consequently, the administrator remains charged with that amount of money, although it was applied on the land contract. Thus, there are errors in the account adverse to the administrator of more than $1,000 — not mentioning the charges by the district court of which the appellant complains on this appeal.
We deem it proper to say, also, that the record shows conclusively that at the time of the death of Sakarias Markhus he left property which was very little more than sufficient to pay his debts and that if the estate had been closed promptly there would have been practically nothing for distribution to the heirs. The record shows that, through farming the land in which Sakarias Markhus had at the time of his ■death only an equity, appraised at $380, the administrator received throughout the succeeding years several thousand dollars, that he paid the taxes and applied some $3,000 in paying up the land contract and had almost $3,000 on deposit in the bank. This was all accumuláted through the management of the administrator and was not in fact left by the deceased. The administrator unwisely paid up the land! c’on-traet without investigating to determine whether the title was clear, and he left -lying in the 'bank fin his account as administrator1' klrhost $3,000,'which is'now partially lost through the failure of the bank. It is not possible to determine from this record to what extent the estate will suffer on account of these matters; but, if any substantial amount of property is ever available for distribution to the heirs, it will be due to the efforts of the administrator throughout the years.
There is some suggestion in the record that the mortgages on the land were in fact paid through the agency of Johnson to act for the mortgagee in making the collection. It appears certain that the administrator paid the full consideration for the land contract, and there is
Of course, it is not to be inferred that the proper administration of the estate, to the end that it be closed as soon as it may be and the rights of all parties protected, is to be in the least prejudiced through the failure of the present petitioner, who is respondent here, to have made proper proof of his right to act as attorney in fact for the heirs. It is the primary duty of the present county judge, just as it was the primary duty of the respondent petitioner while he was county judge, to see that the estate is properly administered and the rights of all interested parties protected. See §§ 8519 and 8525, Compiled Laws of 1913.
- The cause is remanded to the district court with directions to dismiss the appeal from the county court.