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[60 Mont. 276.]

7452) conditioned that she will faithfully execute the duties of the trust according to law (section 7454), and a judgment against the executrix in a probate proceeding, determining the amount of her indebtedness to the estate, is conclusive against the sureties, and cannot be inquired into collaterally. (Botkin v. Kleinschmidt, 21 Mont. 1, 69 Am. St. Rep. 641, 52 Pac. 563; Kenck v. Parchen, 22 Mont. 519, 74 Am. St. Rep. 625, 57 Pac. 94.)

Section 7530 reads: "When a claim is rejected either by the executor or administrator, or the judge, the holder must bring suit in the proper court against the executor or administrator within three months after the date of its rejection, if it be then due, or within two months after it becomes due, otherwise the claim shall be forever barred."

When the respondent's claim was rejected by the executrix, he sued her, as he was by this statute required to do. The statutory directions as to who shall be sued by the claimant specifically directs the suit to be brought "against the executor or administrator," and says nothing concerning the heirs, devisces, or legatees. The reason is self-apparent, viz., the executor or administrator stands in a representative capacity of all interested in the estate. A cause of action is held to be decided between the same parties, not only when the same persons have appeared as parties themselves, but also when they have appeared by executors or administrators.

on Estoppel and Res Judicata, sec. 164.)


Section 4787 provides as follows: "Testamentary dispositions, including devises and bequests to a person on attaining majority, are presumed to vest at the testator's death."

The property of a decedent without distinction is charge able with the payment of his debts (secs. 4799 and 4800, Rev. Codes), and the heirs, devisees and legatees are not entitled to the actual possession of the property of the estate, either real or personal, until it has been administered upon in accordance with the law. The judgment of the federal court in the case before us constitutes an allowed claim against the

[60 Mont. 276.]

estate, and while a devisee or legatee may contest the allowance of the same, it will be ordered paid by the probate court like other approved claims against the estate, where the claim appears to have been adjudicated by a court having jurisdiction of the parties and subject matter of the action. Theoretically the legatee secures title to the personal property upon the death of the testator, but the property does not actually pass into the possession of the legatee until after all of the debts against the estate have been fully liquidated, so that upon final settlement and distribution of the property the assets in the hands of the executrix may be considerably reduced under the amount of the legacy at the time of the death of the testator. Judgment rendered by a court of competent jurisdiction against the executrix, standing in a representative capacity of the deceased, before final settlement and distribution of the estate, binds the heirs, devisees and legatees as privies thereto. The judgment being against the estate necessarily affects their rights.

The judgment of the federal court allowing and adjudi[4] cating the claim of the respondent is in truth and in fact one in rem rather than in personam. It is not against the executrix in her personal capacity or as a legatee, heir or otherwise; but rather against her in her representative capacity. In fact, it is a judgment against the estate, and all persons interested in the estate, whether they be heirs, legatees or creditors, are foreclosed by such a judgment on the merits of the claim.

"Privies are those who are so connected with the parties. [5] in estate or in blood or in law as to be identified with them in interest, and consequently to be affected with them by the litigation, as lessor and lessee, heir and ancestor, executor and testator.” (See Brown v. Chaney, 1 Kelly (Ga.), 412, 2 Black on Judgments, 2d ed., sec. 534.)

In Dunseth v. Butte Elec. Ry. Co., 41 Mont. 14, 21 Ann. Cas. 1258, 108 Pac. 567, the syllabus reads: "A litigant has no right, as against the same adversary, to have a question,

[60 Mont. 276.]

either of law or fact, relating to the same cause of action, twice adjudicated in the same or another court of like jurisdiction, unless a re-examination of the question has been regularly ordered." And in the course of the opinion, it is said: "If it be true, as apparently indicated by the pleadings in this case, that the cause came on for trial in the district court of Silver Bow county upon exactly the same state of the pleadings as had previously been presented to the federal court, then, whatever technical question of pleading may have been decided by the latter court became a thing adjudicated, so far as the state court was concerned, and, as the point decided disposed of the entire case, then the entire case became res judicata upon that state of the pleadings. If the plaintiff was dissatisfied with the ruling of the federal court, it was her privilege to appeal. She had not the right, however, to make the same record in the state court and ask that court, in effect, to reverse the ruling of the federal court. A litigant has no right, as against the same adversary, to have a question, either of law or fact, relating to the same cause of action, twice adjudicated, in the same court or another court of like jurisdiction, unless a re-examination of the ques tion has been regularly ordered. (See Kleinschmidt v. Binzel, 14 Mont. 31, 43 Am. St. Rep. 604, 35 Pac. 460; Agnew v. McElroy, 10 Smedes & M. (Miss.) 552, 48 Am. Dec. 772.) And an erroneous ruling is just as conclusive as the correct one, if allowed to become final.'

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In 2 Black on Judgments, second edition, section 503, it is said: "This great principle of the conclusiveness of judgments is fairly imbedded in the jurisprudence of England. Though recognized with more or less distinctness from very early times, it was never so satisfactorily stated as in the great case of the Duchess of Kingston, where Chief Justice De Grey declared the rule to be that 'the judgment of a court of concurrent jurisdiction, directly upon the point, is, as a plea, a bar, or, as evidence, conclusive, between the same. parties, upon the same matter directly in question in another.

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court.' This language, from being constantly quoted with approbation, has acquired almost the force of a statute. Another early and leading case upon the general subject is one decided by Lord Ellingborough, wherein he said: 'It is not the recovery, but the matter alleged by the party, and upon which the recovery proceeds, that creates the estoppel.'" The general principle announced in numerous cases is that a [6] right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery cannot be disputed in a subsequent suit between the same parties or their privies; and, even if the second suit is for a different cause of action, the right, question or fact, once so determined, must, as between the same parties or their privies, be taken as conclusively established so long as the judgment in the first suit remains unmodified. (Southern Pac. R. Co. v. United States, 168 U. S. 1, 42 L. Ed. 355, 18 Sup. Ct. Rep. 18.)

The judgments of appellate courts are as conclusive as those [7] of any other courts. They not only establish facts, but also settle the law so that the law as decided upon any appeal must be applied in all the subsequent stages of the cause. (1 Freeman on Judgments, 4th ed., sec. 249.) The judgment [8] or decree of a federal court when rendered is binding and perfect between the parties until reversed, without regard to any adverse opinion or judgment of any other court of merely concurrent jurisdiction. Its integrity, its validity, and its effect are complete in all respects between all parties in every suit and in every forum where it is legitimately produced as the foundation of an action or of a defense either by plea or in proof as it would be in any other circumstances. (Crescent City Livestock Co. v. Butchers' Union, 120 U. S. 141, 30 L. Ed. 614, 7 Sup. Ct. Rep. 472.)

In our view the judgment rendered by the federal court forecloses further discussion with reference to the subject. There is no warrant or authority or reason for permitting these questions to thus be further contested in the district

court, sitting in probate, in this contest, as it would amount to a rehearing on issues which have already been determined by the federal court. The judgment established the respondent's claim, and the district court, sitting in probate, upon hearing of the contest, was in error in receiving proof and making findings with respect to the merits of the judgment. The order and judgment appealed from are affirmed.



MR. JUSTICE COOPER, deeming himself disqualified, takes no part in this decision.



(No. 4,871.)

(Submitted May 31, 1921. Decided June 20, 1921.)

[199 Pac. 694.]

Receivers-Appointment Without Notice-Insufficient Showing -Insolvency-Complaint-Verification by Incompetent-In


Receivers When not to be Appointed.

1. Since the appointment of a receiver without notice is a harsh remedy, under which property rights are taken out of private hands and put in hands of a representative of the court, solely as an emergency measure, it should not be invoked if the applicant has any other adequate remedy.

Same-Insolvency of Defendant-Insufficient Showing.

2. Where, in an action to set aside an oil lease as fraudulent, the complaint and affidavit of plaintiffs upon which a receiver was appointed without notice, did not affirmatively show that defendants were insolvent, the appointment was unwarranted.

3. Affidavit or verified bill as essential to appointment of receiver, see note in Ann. Cas. 1913A, 608.

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