83 Neb. 8 | Neb. | 1908
Does a crop of corn which has matured, but which remains ungathered upon the stalks, pass to a devisee of the land, or is it personal property in such a sense that it passes under a paragraph of the will devising personal property? The question arises in this way: Jens Andersen departed this life November 27, 1905, in Kearney county, Nebraska. His last will and testament, bearing date August 14, 1902, was duly admitted to probate December 27, 1905. He left surviving him three nephews and five nieces. The nephews resided in Kearney county, and his nieces resided in the kingdom of Denmark. To
We may regard it as settled in this state that annual orops growing on the land do not pass to the purchaser at judicial sale. Aldrich v. Bank of Ohiowa, 64 Neb. 276; Foss v. Marr, 40 Neb. 559; Monday v. O’Neil, 44 Neb. 724. These cases appear to be based upon Beggs v. Thompson, 2 Ohio, 95, and Cassilly v. Rhodes, 12 Ohio, 88. That this rule does not obtain between grantor and grantee is evident from what is said by the court in Cassilly v. Rhodes. Tiie first paragraph of the opinion is in the following Avords: “If the question were betAveen the grantor and grantee, whether growing crops, annual or other, pass by a deed of sale, it would be of easy solution. They are not, technically, ‘emblements’ but ‘issues’ or ‘profits,’ and part of the land, while in the owner’s hands, and, unless excepted, pass by the deed, because it is construed most strongly against him who makes it.” That this is the rule of the common law is asserted by all textwriters. 1 Kerr, Real Property, sec. 50, says: “Growing crops planted by
We have no statute such as obtains in some of the1 states, notably New York and Ohio, making crops, growing on the land of a decedent at the time of his death, assets going to the executor or administrator to be applied and distributed as part of his personal estate. Even were such a statute in force in this state, we would have to hold, if we followed the court of appeals of New York, that growing crops passed to the devisee, if not necessary to pay debts existing against the estate or legacies under the will of the deceased. Bradner v. Faulkner, 34 N. Y. 347. In the body of the opinion it is said: “In this case there seems to have been no debts, and the sale of this wheat, it is not pretended or claimed, was necessary for the payment of legacies. When it legally appeared that this wheat was not necessary for the payment of debts or legacies, the executor should then dispose of it as directed by the will. To whom, then, did the wheat ultimately belong? * * * At common law, crops growing on land passed to the devisee of the land. This was conceded on the argument. They passed to the devisee upon the presumed intention of the testator, that he who took the land should take the crops which belong to it.”
' We think it is well settled that as between grantor and grantee, or devisee and the exbcutor, or an heir of the
We are urged to hold that a fully matured crop, although standing on the ground, is personal property, which does not pass with a conveyance or devise of the land. We do not think that this rule should obtain. If the grantor or testator intends to reserve a crop standing upon the land, it is easy to make such reservations; whereas, to hold that the question of whether the crop passed with a deed or devise of the land depended upon whether the crop had fully matured Avould raise numberless controversies as to the condition of the crop at the time of the conveyance. In adopting a rule it is always better that it should be such that no controversy is likely to arise OArer its application. We hold therefore that, until a crop is severed from the land upon which it is grown, it is such part of the real estate as will pass by a
In the present case there was a large amount of personal property left after paying all claims against the estate. This, together with 240 acres of land, was devised to the five nieces, share and share alike. We find nothing in the will that indicates any intention on the part of the testator to convert the corn crop growing upon the tracts devised to his nephews into personal property that it should pass to his nieces as such, and we hold therefore that the district court correctly held that it passed to the nephews as a part of the land devised to them.
We recommend an affirmance of the judgment.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.