and a probate thereof, the proceeding is placed upon the same basis 'as a will first admitted to probate in this State❞—that is, that it can be contested in the same way, and is no more conclusive than a domestic will. But in any event, even if there were here a probate such as is claimed, it could only affect at the most the distribution of personal property in this jurisdiction according to the law of the place where the testator was domiciled, and this would only come up upon an application for distribution.

Our Civil Code expressly reserves to the courts of this state the right to determine the validity and interpretation of wills, wherever made, when relating to property within this state, by the law of this state: Civ. Code, sec. 1376.

The conclusion, therefore, is that there has been no conclusive probate at all, even in Washington, of this will; and, if there had been a probate of such will, it cannot affect the right of the probate court here, as respects property in this state, to determine the "validity" of the will according to the law of this state, leaving the question of distribution to be determined as to personalty by the law of the domicile of the testator, and of the realty by the law of this state.

The contention of the proponent would be to place the probate of a will in another state upon a higher plane than a domestic will. When we come to consider that this request for foreign probates is founded on the principle of comity only, and when we read our statutes, it is plain that the contention made is entirely unfounded. In this connection it is instructive to read the following extracts from a decision of the supreme court of Rhode Island:

"The effect of a decree proving a will, like that of a decree granting administration, is confined de jure to the territory and things within the territory of the state setting up the court. . . .

"The legislation of nearly all the states, and certainly of our own, proceeds upon the supposition that such is the limited operation of the probate of a will had in a foreign country or in another state, and provides some mode in general analogous to that pursued in England with regard to a will which has received a Scotch probate, by which conclusive operation may be given to such a will within the state, full

notice being given to all persons interested in order that they may appear and contest the same": Olney v. Angell, 5 R. I. 203, 204, 73 Am. Dec. 62, and cases cited.

Our statutes proceed upon this theory, and, even if a will has been probated in another state, it is just as subject to a contest here when offered for probate as a domestic will. There is no reason whatever why our statutes should be twisted so as to announce a different rule from that which is prevalent in England as regards a Scottish probate in view of the plain provisions of section 1376, Civil Code.

What the rule of distribution may be is one thing; the determination of the "validity" and "interpretation" of a will affecting property in this state is another and a different thing.

Sections 872, 873 and 874 of Hill's Statutes, second volume, of the state of Washington, read:

"872. If any person interested in any will shall appear within one year after the probate or rejection thereof, and, by petition to the Superior Court having jurisdiction, contest the validity of said will, or pray to have the will proven which has been rejected, he shall file a petition containing his objections and exceptions to said will, or to the rejection thereof. Issues shall be made up, tried and determined in said Court respecting the competency of the deceased to make a last will and testament, or respecting the execution by the deceased of such last will and testament under restraint or undue influence or fraudulent representations, or for any other cause affecting the validity of such will.

"873. Upon the filing of the petition referred to in the next preceding section, a citation shall be issued to the executors who have taken upon them the execution of the will, or to the administrators with the will annexed, and to all legatees named in the will residing in the State, or to their guardians if any of them are minors, or their personal representatives if any of them are dead, requiring them to appear before the Court on a day therein specified, to show cause why the petition should not be granted.

"874. If no person shall appear within the time aforesaid, the probate or rejection of such will shall be binding, saving to infants, married women, persons absent from the

United States, or of unsound mind, a period of one year after their respective disabilities are removed."

The laws of this state furnish the rule in regard to inheritance and distribution, and the laws of foreign countries will be disregarded, unless part of a contract: Civ. Code, sec. 1376; Estate of Baubichon, 49 Cal. 18; Estate of Baubichon, Myr. Rep. 55.

For the reasons above set forth the demurrer interposed by proponent executor to the contest herein filed is overruled, with leave to plead thereto within ten days.

On the Contest of Foreign Wills, see Estate of Kershow, 2 Cof. Pro. Dec. 213, and note.

ESTATE OF PATRICK MALLON, DECEASED.

[No. 9,378; decided June 2, 1893.]

Claims Against Estate-Whether Draw Interest.-All interestbearing obligations continue to bear interest after the obligor's death; even those that were not originally interest bearing become so after presentation and allowance.

Claims Against Estate Computation of Interest.-To ascertain the amount of a claim against a decedent's estate at any particular time, there should be added to its face the accrued interest to that date, limiting the rate to seven per cent when the estate is insolvent.

Claims Against Estate.-The Preference Given to Judgments rendered against a decedent in his lifetime includes the interest due thereon at the time of payment.

On January 11, 1890, Mathew McGowan and Thomas Butler, partners under the firm name of McGowan & Butler, obtained judgment in the superior court against Patrick Mallon for $760.56 principal, $30.50 costs, and interest. The judgment debtor died on January 26, 1890, leaving a will, and on February 26, 1890, letters testamentary were issued to Ellen Mallon, his widow.

On November 11, 1890, the judgment creditors filed their claim on the judgment, which claim had theretofore been duly presented, allowed and approved.

On May 29, 1893, the judgment creditors filed a petition for an order requiring the executrix to pay their claim with interest, alleging that the claim was unpaid, and that she had sufficient money of the estate in her hands to pay the same, and that it is a preferred claim. After a hearing the claim was established as a preferred claim, and the executrix was ordered to pay the same, with interest from January 11, 1890.

Roger Johnson, for the petitioners.

M. C. Hassett, for the executrix.

COFFEY, J. When judgment is given against defendant in his lifetime, and after his death is duly presented, allowed and approved as a claim against his estate, and said estate appears to be insolvent, does the preference given by Code of Civil Procedure, section 1643, extend to the interest on said judgment at time of payment?

The question of preference among claims only becomes material when the estate is insolvent, and section 1643, Code of Civil Procedure, places in the fourth class "judgments rendered against decedent in his life, and mortgages, in the order of their date." The executrix has already paid a mortgage with interest, which is in the same class with this judgment, and we think no one could distinguish between an obligation to pay interest, arising from the contract of parties, as in case of a mortgage, and an obligation to pay it arising by operation of law, as in case of a judgment.

The correct view seems to be that while all interest-bearing obligations continue to bear interest after the obligor's death, even those that were not originally interest bearing become so after presentation and allowance: Estate of Olvera, 70 Cal. 184, 11 Pac. 624; Quivey v. Hall, 19 Cal. 98; Estate of Glenn, 74 Cal. 567, 16 Pac. 396.

So that, in order to ascertain the amount of a claim at any particular date, we add to its face the accrued interest to the desired date, limiting that interest to seven per cent when the estate is insolvent: Code Civ. Proc., sec. 1494.

In consequence of this the "debt" which is preferred by section 1643 is the judgment or mortgage plus interest to the

date of payment. And this "debt" must be paid in full, if it is preferred, before any "debt" of a lower class is paid either partially or at all: Code Civ. Proc., sec. 1645.

The word "debt" used in those two sections has a settled meaning, and always includes interest on interest-bearing obligations: Brown v. Lamb, 6 Met. 203; Gray v. Bennett, 3 Met. 522, 526.

In Quivey v. Hall, 19 Cal. 98, it was held, where a judgment rendered against decedent in his lifetime was presented as a claim against his estate and rejected and suit brought on it, the judgment against the administrator was properly given for the amount of the judgment and interest to date of rendition of judgment as administrator.

So that if this claim had been rejected, and claimant had sued the executrix, he would have recovered what he claims now, with the right to priority over the general debts of the estate.

It will be conceded that claimant would be entitled to this accrued interest if the estate was solvent, and it seems that the burden devolves on the executrix to show a different rule, if there be one, regarding an alleged insolvent estate-the only distinction appearing from the statute to be that debts of all classes shall bear but seven per cent interest if the estate is insolvent: Code Civ. Proc., sec. 1494.

ESTATE OF JAMES MCGINN, DECEASED.

[No. 7,054; decided December 1, 1893.]

Revocation of Probate Appeal and Undertaking Thereon.—A decree revoking the probate of a will and awarding costs to the contestants is not "a judgment or order directing the payment of money," and on appeal therefrom no undertaking in double the amount of the costs is required to stay execution of the judgment.

Undertaking on Appeal.-An Undertaking in Double the Amount of Costs, taxed in a case where no undertaking is required to stay execution, is without validity either as a statutory or common-law bond, and cannot be enforced against the sureties.