72 Neb. 755 | Neb. | 1904
In this case Barbara E. Jewell, administratrix of the ('state of Alexander Jewell, deceased, filed a statutory petition in the district court for Lancaster county for a license to sell the real estate of her intestate for the payment of the debts of the estate. Mary J. Bixby, one of the heirs at law of the decedent, filed objections to the issuing of a license on several grounds, the only one of which it will be necessary to examine is the 4th objection, which is as follows:
“This objecting heir further shows to the court that the farm of 156.88 acres was the homestead of decedent and his family at the time of his death, on or about February 7, 1897, and was at said time occupied by the decedent and his family as a homestead, and immediately upon his death the homestead right to the extent of $2,000 in said land descended to the widow, Barbara E. Jewell, for her lifetime, and upon her death to the children of Alexander Jewell, deceased, free and clear from all debts contracted by said decedent in his lifetime, and that said homestead is not liable for the payment of any claim set out in the petition filed herein.”
The administratrix, by way of reply to these objections,
No motion for new trial was filed in the court below, and the only question we shall examine is as to the sufficiency of the pleadings to sustain the judgment. Under section 17, chapter 36, Compiled Statutes, 1903 (Annotated Statutes, 6216), the homestead descends to the survivor for life, and afterwards to his or her heirs forever, subject
“A proceeding under the statute to sell real estate of the deceased for the payment of debts against the estate is not, strictly speaking, an action. It is purely a proceeding in rem, where the principal questions involved are, the amount of debts outstanding against the estate, the amount of personal property available for the payment of the debts, and the necessity to sell the land for which license is sought for the payment of the same.”
“A homestead of less value than $2,000 cannot be disposed of at administrator’s sale either for the discharge of incumbrances thereon, or for payment of debts against the estate of the decedent, and a license granted by the district court, purporting to authorize such a sale, is purely void.”
We therefore conclude that the judgment of the district court decreeing the sale of the homestead, and declaring the alleged incumbrances of the claimants therein recited superior, to the homestead right is unauthorized and void, and we therefore recommend that the judgment of the district court be reversed and the cause be remanded for further proceedings in conformity with this opinion.
For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause is remanded for further proceedings in conformity with this opinion.
Reversed.