Bruce, Ch. J.
Baúl B. Cook having died intestate, the appellant L. B. Smith, was appointed to administer his estate. The decedent held what is commonly called a straight New York life insurance policy, payable, in case of his death, to his estate. The administrator collected on this policy $3,004, and is holding the money pending the determination in this proceeding as to the disposition thereof. The administrator asserts that the money is not part of the estate, but belongs to and should be paid over to the decedent’s father, who is the sole heir, and according to the provisions of § 8719 of the Compiled Laws of 1913, which provides that “the avails of a life insurance policy or of a contract payable by any mutual aid or benevolent society, when made payable to the personal representatives of a deceased, his heirs or estate upon the death of a member of such society or of such insured shall not be subject to the debts of the decedent except by special contract, but shall be inventoried and distributed to the.heirs or the heirs at law of such decedent.”
The respondent bank, which is a large creditor of the estate of the deceased, contends that § 8719 is unconstitutional; and that the insurance money is part of the estate applicable to the claims of the creditors, notwithstanding the statute. The insurance policy was taken out in 1909 and fourteen years after the statute in question was enacted. The statute, therefore, if constitutional, is applicable.
The respondent contends that the act violates § 208 of the Constitution of North Dakota, which reads as follows: “The right of the debtor to enjoy the comforts and necessaries of life shall be recognized by wholesome laws, exempting from forced sale to all heads of families a homestead, the value of which shall be limited and defined by law, and a reasonable amount of personal property; the kind and value shall be fixed by law. This section shall not be construed to prevent liens against the homestead for labor done and materials furnished in the improvement thereof, in such manner as may be prescribed by law.”
The argument of respondent is that the statute is an exemption law, and as it does not fix any limit on the amount of insurance money exempt from creditors’ claims, it is violative of the above provision, which [231]*231provides for exemption, laws which shall merely extend to “a reasonable amount of personal property.”
The appellant contends that the statute in question is not an exemption statute; that the money payable on the life insurance policy is not personal property of the debtor within the meaning of § 208 of the Constitution; and that the constitutional provision does not refer at all to the estates of deceased persons, but merely to the debts of heads of families while living, and to their freedom, and to the freedom of. their property, from execution and forced sale.
In the case at bar there can be no question that the contract between the insurance company and the decedent would have been perfctly valid, and that the plaintiff father would have been entitled to the money if the policy had been made directly payable to him rather than to the estate of the deceased.
There, too, can be no question that, as the statute was in force at the time of the taking out of the policy, the intention of the deceased must be presumed to have been that his heirs should take the money. Such being the case, the money at no time became a part of the estate of the deceased or subject to the claims of his creditors. Pace v. Pace, 19 Ela. 438.
No one would contend that during his lifetime the deceased could not have given any sum of money to his heirs and placed any sum of money in trust for his heirs that he chose, provided that such gift was not at the time when given in fraud of his creditors. Why should he not pay that money or make that gift in the form of insurance-premium payments ?
It is quite apparent, indeed, that the- constitutional provision in question was never intended to apply to eases such as before us. It expressly ■states that its purpose is that the debtor may enjoy the comforts and necessaries of life, and that his property may, to a limited extent, be ■saved from forced sale. The debtor is dead; no forced sale can injure him. As far as his heirs are concerned, they are not debtors and owe none of his debts. ' It may be that, before the property of the debtor’s estate may be distributed to them, the debts of the deceased must be paid. They, however, have no personal liability therefor, for the debts .are not their debts.
Even § 8725 of the Compiled Laws of 1913, which provides that [232]*232“there shall also be set apart absolutely to the surviving wife or husband or minor children all the personal property of the testator or intestate which would be exempt from execution, if he were living, etc.,” and §§ 8723 and 8724, which secure to the surviving husband or wife the family homestead, are not exemption statutes as the term is used in the Constitution. They are not statutes which shall “save the debtor the necessities of life.”
The right of inheritances, indeed, or the right of the creditors to resort to the estate of. a deceased, is, with the exception of vested liens, not an inalienable right. See United States v. Perkins, 163. U. S. 625, 41 L. ed. 287, 16 Sup. Ct. Rep. 1073; Magoun v. Illinois Trust & Sav. Bank, 170 U. S. 283, 42 L. ed. 1037, 18 Sup. Ct. Rep. 594. And in §§ 8723, 8724, and 8725, in fact, in all of the provisions of the Probate Code, the legislature was not exempting property from debts or dealing with any vested rights, but merely stating that the state would waive its own rights, and would allow the property of a deceased person to be resorted to by his creditors, provided that a certain amount, the homestead and other specified property, should go to the surviving husband or wife.
We are not unaware of the case of Re How, 59 Minn. 415, 61 N. W. 456, and Re How, 61 Minn. 217, 63 N. W. 627. We hardly can concur with the reasoning of these decisions, at any rate in the absence of proof of fraud at the time of the taking of the policy and of debts antecedent to that time. As we have before stated, no one could have questioned the right of the deceased to take out a policy payable to his heirs by name, nor, in fact, to have disposed of all of his property while living, provided that at that time no rights of creditors were affected and no fraud was committed.
As far as the case of Holden v. Straton, 198 U. S. 207, 49 L. ed. 1018, 25 Sup. Ct. Rep. 656, is concerned, we believe that it, in the main, bears out the contention of this opinion.
In the case of Skinner v. Holt, 9 S. D. 427, 62 Am. St. Rep. 878, 69 N. W. 595, the holding was merely confined to antecedent debts, and, although the other points involved were discussed, the finding of invalidity was largely based on article 1 of § 10 of the Federal Constitution, which provides that no state shall pass any law impairing the obligation of contracts, and is thus not inconsistent with our holding here, as no impairment of the obligation of a contract can be claimed,
[233]*233The policy, too, was an endowment policy, and it has been the tendency of at least some of the courts to look upon such policies as assets of the deceased, and as provisions for the protection of its creditors, rather than as provisions for the needs of one’s heirs and beneficiaries.
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Bruce, Ch. J.
Baúl B. Cook having died intestate, the appellant L. B. Smith, was appointed to administer his estate. The decedent held what is commonly called a straight New York life insurance policy, payable, in case of his death, to his estate. The administrator collected on this policy $3,004, and is holding the money pending the determination in this proceeding as to the disposition thereof. The administrator asserts that the money is not part of the estate, but belongs to and should be paid over to the decedent’s father, who is the sole heir, and according to the provisions of § 8719 of the Compiled Laws of 1913, which provides that “the avails of a life insurance policy or of a contract payable by any mutual aid or benevolent society, when made payable to the personal representatives of a deceased, his heirs or estate upon the death of a member of such society or of such insured shall not be subject to the debts of the decedent except by special contract, but shall be inventoried and distributed to the.heirs or the heirs at law of such decedent.”
The respondent bank, which is a large creditor of the estate of the deceased, contends that § 8719 is unconstitutional; and that the insurance money is part of the estate applicable to the claims of the creditors, notwithstanding the statute. The insurance policy was taken out in 1909 and fourteen years after the statute in question was enacted. The statute, therefore, if constitutional, is applicable.
The respondent contends that the act violates § 208 of the Constitution of North Dakota, which reads as follows: “The right of the debtor to enjoy the comforts and necessaries of life shall be recognized by wholesome laws, exempting from forced sale to all heads of families a homestead, the value of which shall be limited and defined by law, and a reasonable amount of personal property; the kind and value shall be fixed by law. This section shall not be construed to prevent liens against the homestead for labor done and materials furnished in the improvement thereof, in such manner as may be prescribed by law.”
The argument of respondent is that the statute is an exemption law, and as it does not fix any limit on the amount of insurance money exempt from creditors’ claims, it is violative of the above provision, which [231]*231provides for exemption, laws which shall merely extend to “a reasonable amount of personal property.”
The appellant contends that the statute in question is not an exemption statute; that the money payable on the life insurance policy is not personal property of the debtor within the meaning of § 208 of the Constitution; and that the constitutional provision does not refer at all to the estates of deceased persons, but merely to the debts of heads of families while living, and to their freedom, and to the freedom of. their property, from execution and forced sale.
In the case at bar there can be no question that the contract between the insurance company and the decedent would have been perfctly valid, and that the plaintiff father would have been entitled to the money if the policy had been made directly payable to him rather than to the estate of the deceased.
There, too, can be no question that, as the statute was in force at the time of the taking out of the policy, the intention of the deceased must be presumed to have been that his heirs should take the money. Such being the case, the money at no time became a part of the estate of the deceased or subject to the claims of his creditors. Pace v. Pace, 19 Ela. 438.
No one would contend that during his lifetime the deceased could not have given any sum of money to his heirs and placed any sum of money in trust for his heirs that he chose, provided that such gift was not at the time when given in fraud of his creditors. Why should he not pay that money or make that gift in the form of insurance-premium payments ?
It is quite apparent, indeed, that the- constitutional provision in question was never intended to apply to eases such as before us. It expressly ■states that its purpose is that the debtor may enjoy the comforts and necessaries of life, and that his property may, to a limited extent, be ■saved from forced sale. The debtor is dead; no forced sale can injure him. As far as his heirs are concerned, they are not debtors and owe none of his debts. ' It may be that, before the property of the debtor’s estate may be distributed to them, the debts of the deceased must be paid. They, however, have no personal liability therefor, for the debts .are not their debts.
Even § 8725 of the Compiled Laws of 1913, which provides that [232]*232“there shall also be set apart absolutely to the surviving wife or husband or minor children all the personal property of the testator or intestate which would be exempt from execution, if he were living, etc.,” and §§ 8723 and 8724, which secure to the surviving husband or wife the family homestead, are not exemption statutes as the term is used in the Constitution. They are not statutes which shall “save the debtor the necessities of life.”
The right of inheritances, indeed, or the right of the creditors to resort to the estate of. a deceased, is, with the exception of vested liens, not an inalienable right. See United States v. Perkins, 163. U. S. 625, 41 L. ed. 287, 16 Sup. Ct. Rep. 1073; Magoun v. Illinois Trust & Sav. Bank, 170 U. S. 283, 42 L. ed. 1037, 18 Sup. Ct. Rep. 594. And in §§ 8723, 8724, and 8725, in fact, in all of the provisions of the Probate Code, the legislature was not exempting property from debts or dealing with any vested rights, but merely stating that the state would waive its own rights, and would allow the property of a deceased person to be resorted to by his creditors, provided that a certain amount, the homestead and other specified property, should go to the surviving husband or wife.
We are not unaware of the case of Re How, 59 Minn. 415, 61 N. W. 456, and Re How, 61 Minn. 217, 63 N. W. 627. We hardly can concur with the reasoning of these decisions, at any rate in the absence of proof of fraud at the time of the taking of the policy and of debts antecedent to that time. As we have before stated, no one could have questioned the right of the deceased to take out a policy payable to his heirs by name, nor, in fact, to have disposed of all of his property while living, provided that at that time no rights of creditors were affected and no fraud was committed.
As far as the case of Holden v. Straton, 198 U. S. 207, 49 L. ed. 1018, 25 Sup. Ct. Rep. 656, is concerned, we believe that it, in the main, bears out the contention of this opinion.
In the case of Skinner v. Holt, 9 S. D. 427, 62 Am. St. Rep. 878, 69 N. W. 595, the holding was merely confined to antecedent debts, and, although the other points involved were discussed, the finding of invalidity was largely based on article 1 of § 10 of the Federal Constitution, which provides that no state shall pass any law impairing the obligation of contracts, and is thus not inconsistent with our holding here, as no impairment of the obligation of a contract can be claimed,
[233]*233The policy, too, was an endowment policy, and it has been the tendency of at least some of the courts to look upon such policies as assets of the deceased, and as provisions for the protection of its creditors, rather than as provisions for the needs of one’s heirs and beneficiaries. At least, at any rate, to the amount of the cash value.
Nor do we find any argument against the position taken by us, in the suggestion of counsel for the respondent, that § 6629 of the Compiled Laws of 1913 provides that “a policy of insurance upon life or health may pass by transfer, will or succession to any person, whether he has an insurable interest or not, and such person may recover upon it whatever the insured might have recovered.” This provision is in no way inconsistent with § 8719, supra. Section 8719 merely provides that in the eyes of the law a policy which is made payable to one’s personal representatives or heirs or estate shall be deemed to have been made to the heirs, and that such policy shall go to such heirs free from the debts of the deceased. Section 6629 provides that such a policy may pass by transfer, will, or succession. Section 6629 was the basic law. It first appeared as § 1636 of the old territorial Eevised Codes of 1877. It merely provided that a life insurance policy could pass by transfer, will, or succession, and went no further. There was nothing to prevent the legislature from adding to or amending this statute. This was done in § 8719 of the Compiled Laws of 1913, which was first enacted as § 24 of chapter 111 of the Laws of 1897, and which amended § 6385 of the Eevised Codes of 1895, where the provision first appears. There is nothing inconsistent between the provisions of §§ 6629 and 8719 of the Compiled Laws of 1913. Even after the enactment of § 8719, a testator could still provide by special contract that the proceeds of life insurance policies payable to his heirs or estate should be subject to his debts, and then transfer or will the remainder.
The only question is, Who should the policy pass to and shall it be burdened with debts or not ? If made to the heirs in name it would certainly not have been burdened with the debts of the deceased. All § 8719 provides is that if made payable to them by the general term “heirs,” or made payable to “the representatives” or “estate,” it shall in like manner be considered a trust fund. This, of course, does not prevent one from making a special contract either in the policy or in the will by which the proceeds of the policy may be made subject to the [234]*234.debts of tbe deceased and tbe residue only made payable to tbe beneficiary or legatee.
Counsel for respondent also contends tbat it could never bave been intended tbat tbe county court should bave been made a disbursing agent for anything else than tbe estate of tbe deceased, and tbat such a construction would render tbe statute unconstitutional. He cites tbe case •of Skinner v. Holt, supra, and Finn v. Walsh, 19 N. D. 61, 121 N. W. 766. Such, however, we believe to bave been tbe express intention of tbe legislature. Section 6385 of tbe [Revised Codes of 1895 contained an express provision after tbe words, “are not subject to tbe debts of the decedent except by spcial contract,” to tbe effect tbat, “but in other re-, .spects shall be inventoried and disposed of like other property.” Section 8083 of tbe [Revised Codes of 1905, and § 8719 of tbe Compiled Laws of 1913, omitted tbe words, “like other property,” and changed tbe clause to tbe following “but shall be inventoried and distributed to tbe heirs or heirs at law of such decedent.” From these amendments we come to tbe conclusion tbat tbe legislature intended tbat tbe administrator or •executor should inventory tbe policies and tbe amount, if any, received thereon, and tbat be should then distribute tbe proceeds to tbe heirs, rath•er than put tbe same into tbe estate.
But counsel for tbe respondent contends tbat this cannot be done, and that to confer upon tbe administrator or executor such powers would render tbe statute unconstitutional. He cites in support of this contention tbe case of Finn v. Walsh, supra. We believe, however, tbat there is no merit in this contention. All tbat the case just cited held was that tbe probate court bad no power to adjudicate tbe title to tbe proceeds of such policies as between contesting heirs. It, it is true, by way •of obitv/m, seemed to intimate tbat it would bave no power to distribute property, but we hardly think tbat this objection is tenable. If there .are in tbe contract of insurance special provisions which provide that tbe property shall become a part of tbe estate, then of course tbe probate court has jurisdiction to act in tbe matter. Tbe statute does not require tbe probate judge to distribute. All it provides is tbat tbe property shall be inventoried and distributed. It is certainly not too much to require of a probate court, or rather of an executor or administrator who is to a certain extent a public officer or, at any rate, a public servant for tbe time being, tbat be shall inventory such property which comes [235]*235into bis bands and distribute it as tbe law requires. Tbe duty of distribution is placed upon bim, and not upon tbe county court. Even if placed upon tbe county court, tbe statute would, for tbis reason, bardly be unconstitutional. See Cass County v. Nixon, 35 N. D. 601, L.R.A. 19170, 897, 161 N. W. 201.
Tbe judgment of tbe District Court is reversed, and tbe cause is remanded for further proceedings according to law.