71 Neb. 191 | Neb. | 1904
In March, 1900, Henry A. Boden died intestate leaving three children who are the appellants, and three grandchildren the issue of Albert H. Boden, a son who had died about a year before, who are the appellees, as his sole and only heirs at law. The grandchildren are under the age of 14 years.
Herman Boden, a son of the intestate, was appointed administrator of the estate, which appears to have been fully settled and closed up in the county court of Saline county sometime previous to the 19th day of April, 1901.
On the date last mentioned, the administrator filed a petition in that court alleging that, on the 1st day of January, 1889, the intestate had advanced the sum of $250 to his son Albert, in anticipation of his share in the estate of the intestate, and as evidence thereof the latter had executed his note to the intestate on said date for that amount, payable with interest one year after daté; that on the 7th day of December, 1894, the intestate, in discharge of a certain debt of his son Albert to a third party, had executed his two notes to such third party, each for the sum of $1,570, payable respectively January 1, 1897, and Janu
The county court set a time for hearing the petition, and issued process for service on the children of Albert H. Boden, and at the same time, in writing on the writ “specially deputized” Mr. B. V. Kohout to serve the same on said children and their guardian in the state of Colorado or elsewhere without this state. Mr. Kohout made service of the writ in Colorado and made return under oath.
The county court appointed a guardian ad litem for said childi*en who answered on their behalf. Upon what appears to have been an ex parte hearing, the court granted the prayer of the petition, allowing the administrator the credit prayed, and. charging the share of the chib Iren of Albert H. Boden with $4,372.18, the amount of the three notes, as an advancement made to their father in bis lifetime.
Afterward Herman Boden, the administrator, in his own behalf, brought an action in the district court against all the other heirs of his father for the partition of certain
But two questions are presented by the appeal: (1) fiad the county court jurisdiction in the proceedings had, to open the estate and adjust the alleged advancements? (2) If not, then should the district court have adjusted and allowed the advancements in the partition suit?
The record of the proceedings had in the county court previous to the filing of the petition to open up the estate and adjust the advancements is not before us. But the allegations and the prayer of the petition, as well as the proceedings had thereon, presuppose the existence of a decree of distribution and a final settlement of the estate; and the present case was tried in the district court, and argued in this court, on the theory that, after the petition for opening up the estate and for the adjustment of the advancements had been filed, service of process, or what would be equivalent thereto, was necessary to vest the county court with jurisdiction in the premises.
The appellants first contend that the county court acquired such jurisdiction by the service made on the ap-pellees by Mr. Kohout, and insist that this contention is supported and established by section 22, chapter 20, Compiled Statutes (Annotated Statutes, 4806), which is as follows:
“All writs, notices, orders, citations, and other process, except in proceedings for contempt, may be served in like*195 manner as a summons in a civil action in the district court, and the service of the same by a copy thereof, left at the usual place of residence of the party to be served, shall be deemed equivalent to personal service thereof in cases where personal service is required by law; but to bring a party into contempt there must have been actual personal service of the process upon the disobedience of which' the contempt is founded, and there must be actual personal service of all process in the proceedings for .contempt. In cases where writs, notices, citations, or other process can not be served as aforesaid in this state, the probate court may, in cases where it may be necessary, order the service thereof to be made by publication in some newspaper in this state in such manner as the court may direct, and thereupon the same proceedings may be had as if such writs or other process had been served as aforesaid in this state. Nothing contained in this section shall limit or take away the power of the probate court or judge thereof to give notice or cause the same to be given by publication in the various cases provided by law.”
The construction which the appellants would place on that section is shown by the following taken from their brief:
“It will be seen from the foregoing that the method of the service of writs, notices, etc., outside of the state is left entirely to the discretion of the county judge. He may have the notice served by publication when in his judgment ‘it may be necessary/ but he is not required to employ this method.”
We do not think the section will bear that construction. It contemplates two classes of cases: Those where service in the manner prescribed may be had in this state, and those where it can not. It not only provides how service “may” be made in the latter class of cases, but also how it “may” be made in the former. If, as the appellants-claim, the provisions as to service in the latter should be held directory or permissive because of the auxiliary “may,” then the provisions as to service in the former
It is next contended that the county court acquired jurisdiction by the appointment of a guardian ad litem for the appellees, and the filing of an answer by him in their behalf. There are authorities which support this contention, but we think the better considered cases are against it. New York Life Ins. Co. v. Bangs, 103 U. S. 435; Roy v. Rowe, 90 Ind. 54; Chambers v. Jones, 72 Ill. 275; Good v. Norley, 28 Ia. 188; Frazier & Tulloss v. Pankey, 1 Swan (Tenn.), 75.
The appellants next insist that, even Avere the county court Avithout jurisdiction to adjust the alleged advancements, it was within the jurisdiction of the district court to adjust them in the partition suit. There is no doubt that the district court, in a proper case, may adjust advancements in a suit for the partition of land. Schick v. Whitcomb, 68 Neb. 784.
But, AAdiile the three notes are frequently referred to in the argument as advancements, there is no competent evidence in the record that they or any of them Avere in fact such. In order that a gift or grant shall be deemed an advancement, it must be expressed in the gift or grant to be so made, charged in Avriting by the intestate as an advancement, or acknoAvledged in Avriting as such by the child or other descendant. Section 34, chapter 23, Compiled Statutes (Annotated Statutes, 4934). That section by implication excludes parol evidence of an advancement. Pomeroy v. Pomeroy, 93 Wis. 262; Bulkeley v. Noble, 2 Pick. (Mass.) 337; Bullard v. Bullard, 5 Pick. (Mass.) 527; Barton v. Rice, 22 Pick. (Mass.) 508. The evidence relied upon in this case as shoAving that the notes, or any of them, were intended as advancements is exclusively parol, and, as we have seen, wholly incompetent for that purpose.
“In many instances such claims are covered by the dust of time and forgotten, though found by executors after the death of testators. In many other instances the advances are intended as benefactions and gifts, conditioned on some unforeseen circumstance arising to make it expedient to regard them as debts.” See, also, Wadleigh v. Jordan, 74 Me. 483; Allen v. Edwards, 136 Mass. 138; Reed v. Marshall, 90 Pa. St. 345; Milne’s Appeal, 99 Pa. St. 483.
The note of $250 was due January 1, 1890, and was barred long before the death of either the payee or payor. The other two notes, as we have seen, are alleged to have been given on the 7th day of December, 1894, by the intestate in discharge of a certain debt, which his son Albert, father of the appellees, owed to a third party. The evidence as to that transaction is exclusively parol, and is to the effect it was agreed between the father and son that, in case the latter failed to repay the amount during the lifetime of the intestate, it should be deducted from his share of the estate. This evidence shows that immediately upon the giving of such notes, the father of the appellees became indebted to the intestate in the amount of the debt thus discharged, and the right of action accrued thereon that instant. The stipulation that such indebtedness should be deducted from the debtor’s share of the intes-
What has been said disposes of this appeal; hut it may not he out of place to call attention to a matter not necessary to a decision. On the trial the gentleman who had been appointed guardian ad litem in the county court testified that the hearing on the petition to open up the estate and charge the advancements was set for one o’clock of a certain date; that he appeared in the county court at 1:80 o’clock of such date, and was informed by the county judge that the hearing on the petition had been closed; he then called the attention of the county judge to the answer which he had previously filed on behalf of the minors, • and informed him that he did not think the petitioners were entitled to the relief asked; whereupon the county judge remarked that he examined into the matter, and was satisfied that the relief prayed should he granted- The foregoing shows to what extent the minors were represented in the county court. It also shows, we think, not only unseemly haste on the part of the county judge in the disposition of an important matter, but that both he and the learned gentleman who acted as guardian ad litem fell into a common error, namely, that the appointment of a guardian ad litem is a mere matter of form, and his duties purely perfunctory. Such is by no means the case. He should prepare and conduct ihe defense of his wards with as much care as though acting under a retainer. Any lower standard finds no justification either in law or the ethics of the profession.
It is recommended that the decree of the district court be affirmed.
Affirmed.