93 Neb. 166 | Neb. | 1913
A motion to dismiss the appeal has been made by the administrator, based upon the contention that the order refusing to set apart to the widow a part of the premises as the family homestead and granting a license to him to
Section 581 of the code provides, among other things, that “an order affecting a substantial right made in a special proceeding * * * is a final order which may be vacated, modified, or reversed, as provided in this title.” Section 582 provides for a review in the supreme court of judgments and final orders. We have frequently held that this is a “special proceeding.” The judgment in this case denied the prayer of the widow to set apart a part of the real estate of her deceased husband as the family homestead, and refused to order the sale of the premises in parcels as she prayed. There can be no doubt that the right of the widow and children to’ have the extent of the homestead determined and to have it set apart before the sale, or to have the land sold in parcels or in such a manner as best to preserve the homestead interest, or to show that the amount of money needed to pay debts is less than alleged are substantial rights. An adverse decision and order based thereon is a final order reviewable upon appeal.
The administrator bases his contention upon the authority of Miller v. Banna, 89 Neb. 224. In that case a husband who was administrator of the estate of his deceased wife procured a license to sell a portion of the real estate, “subject to the life estate of the surviving husband.” The heir of the wife, who had no notice of the proceedings until after the order was made, filed objections to the
Motion to dismiss overruled.