upon such refusal. It appeared in that case that an administrator was appointed in October, 1898; that on December I the probate court made an order fixing the time for presenting claims against the estate at six months from that date, which time expired about May 1, 1899. The widow refused to carry out the contract to convey the land on or about August 17 following—some four months after the expiration of the time limited for presenting claims. The court held the right of action barred, for the reason that the claim was not presented to the probate court for allowance. At the time the claim became absolute, the proceedings in the probate court were, as in the case at bar, still pending, and final decree was not made for some time thereafter. That decision is controlling in the case at bar, and we follow and apply it.

The case of McKeen v. Waldron, 25 Minn. 466, is not in point, for the claim there involved remained contingent, and did not mature and become absolute pending the administration of the estate, as in the case at bar. The liability here sought to be enforced is exclusively statutory. It does not exist at common law, and the general rule that statutes creating liabilities are to be strictly construed must be applied. Sutherland, St. Const. § 371. Rights created and liabilities imposed by statute where none otherwise exist, dependent upon compliance with certain imposed conditions, may be enforced only when the conditions are complied with. Lane's Appeal, 105 Pa. St. 49; O'Reilly v. Bard, 105 Pa. St. 569; Chicago v. Sturgis, 44 Mich. 538, 7 N. W. 213.

The section of the statutes creating the liability sought to be enforced in this action, viz., G. S. 1894, § 5918, et seq., must be construed in connection with sections 4511, 4514. The liability created by the former is dependent upon a compliance with the provisions of the latter, as respects the presentation of the claim to the probate court. If such sections be not complied with by the proper filing of the claim in that court, no liability exists. Hantzch v. Massolt, supra. It is not important that the time limited by the probate court for presenting claims had expired when the claim became absolute, for plaintiff could have applied to that court to be relieved, and for leave to file and present the same, and we must assume that an application properly made would have been granted. An application of the kind made under circumstances like those here presented would be granted almost as of

course. So that, as the claim in question became absolute before the estate of Burns was finally closed and final decree entered, and was not presented for allowance to the probate court, the heirs are not liable.

Order reversed and new trial granted.

MARY A. HADLEY and Another v. SOPHIE BOURDEAUX and Another.1

The probate court in this state is a court of record, and its judgments and decrees are not open to collateral attack. The same presumptions obtain in respect thereto as to judgments and decrees of courts of general jurisdiction.

Judgment-Collateral Attack.

The jurisdiction of the probate court to render a particular decree, where the same is collaterally attacked, is conclusively presumed, unless the contrary affirmatively appears from the record itself.

Verdict.

Evidence held to sustain the verdict.

Appeal by defendants from an order of the district court for Hennepin county, Harrison, J., denying a motion for a new trial. Affirmed. George R. Robinson, for appellants.

Hicks, Carlton & Cross and Wallace H. Davis, for respondents.

BROWN, J.

Action in ejectment to recover the possession of certain real property, in which plaintiffs had a verdict, and defendants appealed from an order denying a new trial.

The facts are as follows: Charles Mousseau was in his lifetime the owner of the land in controversy, and on September 22, 1880, entered into a contract with his son, Paul Mousseau, by which the lat

1 Reported in 95 N. W. 1109.

90 M.-12

ter agreed to make certain money payments to the father during his lifetime, in consideration of which the son was to have the land. The contract was in writing, particularly specifying the terms and conditions thereof,, and was in all things complied with by the son. Thereafter, in February, 1882, Charles Mousseau died, and in the course of the administration of his estate the son, Paul Mousseau, made application to the probate court for judgment and decree requiring the administrator to convey the land to him pursuant to the terms of the contract. The decree of the probate court was made accordingly, and was sustained on appeal to this court. Mousseau v. Mousseau, 40 Minn. 236, 41 N. W. 977; Mousseau v. Mousseau, 42 Minn. 212, 44 N. W. 193.

Plaintiffs in this action have succeeded to the title thus acquired by Paul Mousseau, and brought this action to recover the possession against defendants, one of whom is the daughter of the deceased Mousseau. Defendants interposed as a defense to the action (1) that plaintiffs failed to show a valid title to the land, it being claimed that the decree of the probate court requiring a conveyance of the same by the administrator was void, because no notice of the hearing on the application for such decree was given to defendant Oliver Bourdeaux, husband of defendant Sophie Bourdeaux, surviving daughter and heir of deceased; and (2) title by adverse possession.

At the time of the application to the probate court for the order and decree requiring the administrator to convey the property to Paul Mousseau, the court made an order fixing a time and place of hearing upon the petition, and directed notice thereof to be given to all persons interested in the estate, by personal service of a copy thereof upon them, except as to nonresidents, upon whom service was to be made by publication. Defendant Oliver Bourdeaux resided upon the land in question at the time of the issuance of the order and hearing thereon by the probate court, and it is claimed that the record of that court is defective because it does not show a service of the notice of hearing upon him; that, because of the fact that he was the husband of one of the heirs of the deceased, he was an interested party, within the meaning of the order of the probate court, and notice should have been served upon him. We need not determine whether his contention in this respect is sound or not.

The probate court is a court of record and of superior jurisdiction in this state, and its judgments and decrees are not open to collateral attack. Davis v. Hudson, 29 Minn. 27, 11 N. W. 136. The same presumptions obtain in respect to the judgments and decrees of that court as to the judgments and decrees of courts of general jurisdiction (Fitzpatrick v. Simonson Bros. Mnfg. Co., 86 Minn. 140, 90 N. W. 378), and the principle laid down in Gulickson v. Bodkin, 78 Minn. 33, 80 N. W. 783, is decisive of the case against defendants. It is there held that,

"Where the validity of a domestic judgment is collaterally attacked on the ground of the want of jurisdiction of the court, jurisdiction is conclusively presumed, unless the contrary affirmatively appears on the face of the record itself, and that this rule obtains where the record is silent upon the jurisdictional facts, as well as when it affirmatively states or recites them. The mere absence from the judgment roll of papers which ought to have been included, and which, if included, would affirmatively show that the court had jurisdiction, is not enough to make it affirmatively appear from the face of the record that the court had no jurisdiction."

Within this principle, we are required to presume that notice was properly served upon defendant Oliver Bourdeaux, if service upon him

was necessary.

The second defense, viz., that of title in defendant by adverse possession, was fully and fairly submitted to the jury by the trial court, who found adversely to defendants' contention. We have examined the evidence, and find no reason for disturbing their conclusion. The verdict is abundantly supported by the evidence, and there was no error in any of the instructions of the court on this branch of the case. Order affirmed.

STATE ex rel. ALICE ADAMS RUSSELL v. FREDERIC C. HARVEY.

Laws 1902, c. 3, relating to the taxation of inheritances, is unconstitu tional, for the reason that it purports to make the rate of taxation ten per cent., or double the constitutional limitation, in the case of collateral heirs and other parties.

Appeal by defendant from an order of the district court for Hennepin county, Simpson, J. Affirmed.

F. H. Boardman, for appellant.

H. B. Chamberlain, for respondent.

START, C. J.

The relator, as executor of the last will of Sol Smith Russell, deceased, after the settlement of his estate and of her account, applied to the judge of the probate court of the county of Hennepin for a distribution of the residue of the estate to her, as widow and sole devisee, without the payment of an alleged inheritance tax. Her application was refused, and upon her petition the district court of the county issued its alternative writ of mandamus to the judge of the probate court, directing him to grant her application, or show cause why he had not done so. The judge made return to the writ, alleging as the sole reason for not decreeing a distribution of the residue of the estate the fact that the estate was subject, by virtue of Laws 1902, p. 43 (c. 3) to an unpaid inheritance tax, amounting to the sum of $575.55. The district court, after hearing the matter, held that the statute was unconstitutional, and ordered a peremptory writ of mandamus to issue, directing the judge of probate to decree a distribution of the estate without the payment of the alleged tax. An appeal from the order on behalf of the judge of the probate court was taken to this court.

1 Reported in 95 N. W. 764.