
    John Seery, Jr., Administrator, with will annexed, v. Anna L. Murray et al., Appellants.
    2 Executor and Administrator: collateral attack. The validity of the appointment of an administrator with the will annexed cannot be collaterally attacked in an action by him to recover assets of the estate.
    3 Jurisdiction to prob \tb will. No written petition asking for the probate of a will is necessary to give the court jurisdiction to appoint an administrator with the will annexed, under Code 1873, section 2338, providing that any person having the custody of a will shall, on the testator’s death, file it with the clerk, who shall open and read the same, and sections 2340, 2341, requiring the clerk, without any other formality being prescribed, to give notice and take all other steps for its probate.
    4 Settlement b sr heirs. An assignment by the heirs at law to devisees, without the probate of the will, of all their interest in the estate, is not conclusive against the right of an administrator with the will annexed to recover the assets of the estate, although there are no creditors, especially where the assignment is attacked for fraud, under Code 1873, sections 2338, 2839, requiring the filing of a will for probate and fixing penalty for failure, and section 2353, providing that the will cannot be carried into effect until duly probated.
    
      5 Claims. That there are no claims against a decedent’s estate cannot. be judicially determined before the expiration of the year allowed by the statute for filing claims.
    7 Bond by devisee. Code 1873, section 2396, providing that any person interested in a decedent’s estate may prevent a sale of it by giving a bond to pay all demands against the estate, to the extent of the value of the property, does not apply to an action by an heir to recover property alleged to have been unlawfully siezed by a a devisee.
    6 Courts: Different judges. A judge is not required to indorse or follow the rulings of another judge under whom prior proceedings in the same action have been had.
    
      Appeal from Jones District Court. — Hon. II. M. Bemley, J udge.
    Friday, January 27, 1899.
    Action by plaintiff to recover certain assets of the estate of his testator, which it is charged defendants have unlawfully seized and kept. There was a trial to a jury, and, under direction of the court, a verdict against defendants Anna L. Murray and Bertha Seery. From a judgment thereon, they appeal.
    
    Affirmed.
    
      F. O. Ellison, J. G. Kelly, and D. A. Wynkoop, for appellants.
    
      Sheean & McCarn and Alphons Matthews for appellee.
   Waterman, J.

John Seery died in Jones county, on March 1, 1895, leaving the following will: “I, John Seery, Sr., in the county of J ones and state of Iowa, farmer, being of sound mind and disposing memory, do make, publish, and declare this to be my last will and testament. And as to my worldly estate, real and personal, consisting of my farm of three hundred and twenty acres, more or less, situated on section seventeen, Washington township, Jones county; also twenty acres of timber land situated on section nineteen, Washington township; also twenty acres timber land situated ón section thirteen, Richland township, — all in -Jones county; and all the appurtenances thereunto belonging, consisting of all live stock, farming machinery, and produce, also the household furniture, — I give and bequeath all that is contained herein to my daughter Anna and my son Francis, conjointly. [Signed] John Seery, Sr.” Plaintiff is a son of testator, and this action is brought against Anna L. Murray, nee Seery, Bertha Seery, widow of Francis Seery, and one FI. L. Dehner, cashier of the Cascade Bank. There were other children of deceased, but, for reasons that will appear, they are not parties hereto1. Anna L. Murray and Francis Seery, the deceased husband of Bertha Seery, are the devisees named in the will. The property that is the subject of the action consists of two certificates of deposit in the Cascade Bank, payable to testator, and also a promissory note in his favor, The value of this property is not controverted. It was found by the trial court to be seven thousand two hundred and fourteen dollars and twenty-three cents. The charge made by plaintiff is that the will was suppressed by defendants, and that the devisees named therein, with the connivance of Dehner, secured possession of said property. The defendants claim that Anna L. Murray and Francis Seery, named in the will, were entitled by its terms to the property in question; that Bertha, the widow of Francis Seery, deceased, is, by the terms of his will, entitled to the whole of his estate. It is further claimed on behalf of defendants that there are no debts of the estate of John Seery; and that to enable the devisees to secure their property therein without the expense or trouble of probate proceedings, after the death of said Seery, Sr., they procured from each of the other children and heirs at law, including plaintiff, an assignment in writing of all interest in said estate; and that possession of the property in dispute was then taken. By a reply, the making of such assignment by plaintiff is admitted; but it is alleged that it was procured by fraud; that the will was concealed and its contents unknown to plaintiff; and that defendants falsely represented to him that the will gave them the property in question, when in truth and in fact it does not. After the assignments mentioned were made, the will came to light; and on March 16, 1896, it was probated in the district court of Jones county, and plaintiff was appointed administrator oí the estate with the will annexed, and duly qualified as such. Thereafter, on May 24, 1896, this action was begun. Defendants Anna L. Murray and Bertha Seery seem to claim title to the property in question, both under the will of John Seery and under the assignments from the other heirs at law. But while there appears to be a difference of opinion between the parties as to the construction of the will, with relation to whether the property in suit is included in the devise therein made, the matter is not argued, and we shall pass that question without deciding it. The fact is that the record comes to ns in such a state of elaborate confusion that it has taken more time to discover the issues and state the facts thaq should have been required to decide the case.

I. Defendants attempt to put in issue the validity of plaintiff’s appointment as administrator. A question of that kind can ordinarily be raised in a direct proceeding only. His right or authority cannot be made the subject of a collateral attack, such as is here attempted. Lees v. Wetmore, 58 Iowa, 170; Murphy v. Creighton, 45 Iowa, 179. But it is said by defendants that the district court lacked jurisdiction to make the appointment, and that ■•a - jurisdictional question can be raised in any manner and at any time. The foundation for this claim is that no written petition was filed asking for the probate of the will, and it is thought that this was necessary to give the court jurisdiction. There is no statute requiring a petition to be filed. We know that it has been the general practice in this state to proceed, as was done in this case, without any written application. This construction given the statute generally by tbe profession, while not authoritative, is at least a strong argument against the position assumed by defendants. The Code of 1873 (section 2338) provides that “any person having the custody of a will shall, upon the death of the testator, file it with the clerk, who shall o.pen and read the same.” And, following this, sections 2340 and 2341 require the clerk, without any other formality being prescribed, to give notice and take all other steps for-its probate. We know of no reason that' will warrant us in adding anything to the statutory requirements. In California the statute is similar to our own, in that it does not. expressly require that a petition for probate uf a will be-filed; and it is there held that a petition is not necessary in order to give the court jurisdiction. In re Howard’s Estate, 22 Cal., 395.

II. The next point sought by defendants to be made is. that, there being no creditors of this estate, the heirs had a right to settle it without the intervention of the probate-court;' and the case of Christe v. Railway Co., 104 Iowa, 707, is relied upon as sustaining this position. The differences between the cases are not only numerous, but. patent. We will say, first, that the most that can be-claimed for the-Christe Case is that it holds that, in the absence of creditors, an estate may be settled without, the intervention of an administrator, if the heirs can agree-In the case at bar those claiming an interest do not agree. It is distinctly charged that what is set up. as an agreement of settlement is fraudulent and void. Next, the estate in the Christe Case was that of an intestate; here there is a will-We have no statute requiring the appointment of an administrator of an intestate estate; but there is a provision requiring the filing of a will for probate, and fixing a penalty for a failure so to do. Code 1873, sections 2338, 2339. Again,, the inherent differences in the character of the estates would seem to make necessary a difference in the ruling on a question of this kind. In cases of intestacy the heirs take by law, but in testate estates those entitled take by gift through the will. Under our statute, a will cannot be carried into ■effect until duly probated. Section 2353. And it has been elsewhere held, as a general rule of the.common law, thaf no •court can give effect to a will not probated. Kinnebrew v. Kinnebrew’s Adm’rs., 35 Ala., 638. It is further said that ■one cannot claim title through a will unless it is probated Hawkins’ Adm'r v. Dumas, 41 Ala. 391; and, again, that, until a will has been probated, it cannot be read in evidence in any court. Rogers v. Stevens, 8 Ind. 464; Fotheree v. Lawrence, 30 Miss., 416; Swazey v. Blackman, 8 Ohio, 5; Kerr v. Moon’s Devisees, 9 Wheat., 566; Shumway v. Holbrook, 1 Pick., 114. Some authority can be found, under statutes differing from ours, for saying that the parties interested under a will may, by agreement, dispense with its probate, and secure a different disposition of the property, in order to avert family controversy. Stringfellow v. Early, (Tex. Civ. App.), 40 S. W. Rep. 871. But even under this rule, defendants would not be aided, for the agreement here is assailed for fraud by plaintiff, who claims an interest in the property. Where there is a controversy, we •do not see how, without probate, it can be determined who is entitled to share in the estate. Finally, we did not hold in the Christe Case that the. appointment of the administrator was invalid, or that he could not proceed to- settle the estate, further than that he could not collect a claim which had .already been paid to those entitled. Under our statute, we think the holding is required that devisees are entitled to nothing save as they derive rights under a probated will. With their rights under an assignment challenged for fraud, and with no rights that can be asserted under the will, unless it is properly proven, we cannot see that appellants ]iave any standing to object to the settlement of the estate in the usual and. proper manner.

There is still another objection to the position taken by defendants. This action was brought before the expiration of tbe time for filing claims, and tbe judgment of tbe trial court was rendered within the year following the date of plaintiff’s appointment as administrator. So,, although defendants assert that there are no claims-against the estate of John Seery, that fact could not have-been judicially established at the time the district court was-called upon to pronounce judgment.

III. Some of these proceedings were had before another judge than the one from whose decision the appeal is taken; and it is made a ground of complaint by defendants that the latter did not indorse or follow the rulings of his colleague. He was not obliged to do-so. Richman v. Supervisors, 77 Iowa, 513.

IV. In conclusion, defendants urge that the court erred in not accepting a bond which was tendered by them,, conditioned for the return of the property, if required. Section 2396, Code 1873, is relied upon in support of this claim. .That section has no application to cases of this kind. We may say also on this point that we do not find, among the errors assigned, any which presents this question. An ' additional assignment, which was filed by appellant, and intended doubtless to supply this-defect, does not comply with the rules. We discover no error in the proceedings of the district court, and its judgment is therefore aeeirmed.  