69 Neb. 565 | Neb. | 1903
The plaintiffs commenced this action in the district court for Howard county. The allegations of their petition were in substance as follows: “That, the plaintiffs, Louis N. Andersen, Ole Andersen, and the defendant, Anders P. Andersen, were the sons of one Frederick Andersen, and his only heirs; that on the 7th day of January, 1896, Frederick Andersen executed his last will and testament, and afterwards on the 7th day of July, 1896, departed this life; that he was seized in fee simple at the time of his death of the north half of the northwest quarter of section 33, township 11, range 11, in Howard county, Nebraska; that by his said will he bequeathed all his property, both real and personal, to his sons.” A certified copy of the will was attached to the petition marked exhibit “A.” It was further alleged: “That the plaintiffs are, each, the absolute owners of, and have legal title to, an undivided one-third interest in the said real estate, and are entitled to the immediate possession thereof; that they claim title under the will as probated in Howard county, Nebraska, as the same appears on file in the probate court of said county, a certified copy of which is now recorded in the recorder of deeds’ office of Howard county, Nebraska. Further said plaintiffs claim title by virtue of the fact that they are the legal heirs and sons of Frederick Andersen, deceased.” It was further alleged: “That at the time of the death of Frederick Andersen, the plaintiff, Louis N. Andersen, visited Howard county, Nebraska, and was shown by the defendant what purported to be a copy of his father’s will; that the plaintiffs learned afterwards, in June, 1901, that the will shown them by the defendant was not a true copy of the will of Frederick Andersen, deceased; that it purported to bequeath all of the property belonging to the deceased, both real and personal, to the defendant Anders P. Andersen, the purported copy reading to my son, Anders P. Andersen, while the true will reads, to my sons; that
Following these allegations the petition concludes with a prayer, in substance, as follows: “The plaintiffs therefore pray that said will may be construed, and if the same be adjudged to read sons, that the, same may be adjudged good in law, and these plaintiffs may each be adjudged to have an undivided one-third interest in the above described real estate; and if the said will be found to read son, that the same may be adjudged void and of no effect for uncertainty, and that each of these plaintiffs has an undivided one-third interest in the said real estate under the law. That there may be an accounting of personal property and money left by said Frederick Andersen, deceased, and the rentals and profits accruing since his demise, and the taxes paid by defendant, and the expenses incurred in settling all just claims against
The copy of the will attached to the petition is in such a condition that it is difficult to determine, without extrinsic evidence, whether the word in disjjute is “son” or “sons.” To this petition the defendant demurred for the following reasons: First, because the court has no jurisdiction of the subject matter of the action; second, because the petition does not state facts sufficient to constitute a cause of action in favor of the plaintiffs and against the defendant. The demurrer svas sustained, and the action dismissed. The plaintiffs thereupon prosecuted error to this court, and contend that the court erred in sustaining the demurrer and dismissing the suit.
Plaintiffs now claim, as the basis of their contention, that the action was one to quiet title by persons out of possession, and cite a long list of authorities showing that such an action may be' maintained. There is no doubt but that our code provides, that an action to quiet title
Again, if the plaintiffs’ contention as to the proper construction of the will be not adopted, then they ask the court to declare it void for uncertainty in order to invest them with the ownership of two-thirds of the land in question, under the laAV of descent. This amounts to a proceeding to contest a will. The county court is the tribunal of original and exclusive jurisdiction over such a proceeding, and the matter can only come before the district court on appeal or error from the judgment of that court. However, under our liberal system of pleading, if a petition contains allegations sufficient to entitle the plaintiff to any relief whatever, a general demurrer thereto should be overruled: An examination of the numerous and apparently conflicting allegations and demands for relief, contained in the petition in this case, convinces us that the plaintiffs have alleged that they have a title to two-thirds of the land in question, and are the owners thereof, and of the personal property and proceeds thereof; that defendant by procuring a forged will, the probate thereof, a finding of the county court thereon that he is the sole owner of the land in question, and by filing such documents with the register of deeds of the county where the land is situated, has cast a cloud on their title, which they ask to have removed. It would seem, to that extent, the petition states a cause of action, and therefore the demurrer should have been overruled; and we recommend that the judgment of the district court be reversed and the cause remanded for further proceedings.
By the Court: For the reasons given in the foregoing " opinion, the judgment of the district court is reversed and the cause remanded for further proceedings.
Eeversed.