Page:North Dakota Reports (vol. 48).pdf/876



Equitable action in District court, Williams county, Lowe, J. to set aside ante-nuptial and post-nuptial agreements and the final decree in an estate. The plaintiff has appealed from an order sustaining a demurrer to the complaint.

Reversed.

Kvello & Adams, for appellant.

“In a proceeding for the administration of the property of a decedent, a county court is without jurisdiction to determine the validity of an ante-nuptial settlement had between deceased and his widow.” Wilson v. Wilson, 132 Pac. 67.

“Ante-nuptial agreements made prior to marriage between the parties about to be married, concerning and representing their individual and separate property may be upheld as valid as to property exclusive of the homestead exemption as defined by the laws of North Dakota, but of the homestead exemption such ante-nuptial agreements are void as being contrary to public policy and welfare and protection of the home, and such homestead exemptions cannot be waived before the arrival of the appropriate’ time of claiming it.” Swingle v. Swingle, 36 N. D. 610, 162 N. W. 912; Cyc. Vol. 21 p. 1250.

“All parties having or claiming an interest in real property must be made parties to actions concerning the title thereof.” Murdock v. Hanson, 23 N. D. 280, 136 N. W. 236.

The further fact that all the defendants may not be equally affected makes no difference. Section 256, Vol. 1 Corpus Juris, p. 1093.

“In those states whose statutes provide a complete system of probate procedure and confer exclusive jurisdiction of estates of deceased persons upon probate courts during the administration of the estate. It becomes necessary to invoke the aid of equity to accomplish some particular thing that tribunal will after the accomplishment of the parti- cular purpose send the case or cause back to the probate court for further administration rather than take the entire proceedings away from the usual form. The jurisdiction of equity should cease with its necessity.” Reinholdt v. Gartile, 33 Ark. 727; Burton v. Burton, 21 Pac. 847, (Calif.) Cawdrey v. Hitchock, 103 Ill. 262; Domestic Missionary Society, etc. v. Pells, 54 Am. St. Rep. 888 (Vermont) 35 Atlantic, 467.